1. Definitions. As used in these Terms and Conditions (“Agreement”), (a) “Seller” means ChromaDex, Inc., its affiliates and their respective successors and assigns, (b) “Buyer” means the party executing this Agreement to purchase the Products or Services and/or the party accepting delivery of the Products or Services under this Agreement, (c) “Products” mean, but are not limited to, the standards, kits reference materials and other equipment and goods provided by Seller under this Agreement, and (d) “Services” means all lab work and other services provided by Seller in connection with the sale, use or installation of the Products. TOP
2. Acceptance, Merger and Integration. Buyer will be deemed to have accepted this Agreement when Seller returns to Buyer an executed copy of this Agreement, by confirming this Agreement by its purchase agreement or confirmation, or by acceptance of delivery of the Products or Services under this Agreement. Seller will be deemed to have accepted this Agreement when Buyer returns to Seller an executed copy of this Agreement, or, at Seller’s option, when Seller begins substantial performance under this Agreement. Seller reserves the right to accept or reject any purchase agreement or confirmation. Buyer has no right to cancel or defer shipment, delivery or installation unless agreed to in writing by Seller. Notwithstanding the manner in which Buyer accepts this Agreement, Buyer’s acceptance of this Agreement is limited exclusively to the acceptance of all of Seller’s terms and conditions set forth in this Agreement. Buyer may acknowledge this Agreement by its purchase agreement, confirmation or acknowledgment form, but any and all terms and conditions contained in such purchase agreement, confirmation or acknowledgment form or other communications with respect to the transaction contemplated by this Agreement, or subsequent to the date hereof, shall be without any force and effect. This Agreement, and all exhibits, riders or limited warranties attached hereto, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral agreements between the parties as to the subject matter of the purchase of the Products or Services. TOP
3. Payment. Payment shall be net thirty (30) days from the date of shipment; provided, however, Seller reserves the right to modify such credit terms in its sole and absolute discretion. Failure to make prompt and full payment hereunder constitutes a material breach of this Agreement and affords Seller the right to suspend its performance without liability to Buyer and cancel this Agreement and any purchase orders. Buyer has no right of setoff. If full payment is not made when due, Seller shall be entitled to interest on any amount unpaid at the rate of 1.5% per month until Seller receives payment in full. In addition, if any amount payable to Seller is not received by Seller within 10 days of the due date, a late payment processing charge equal to 6% of such delinquent amount will be paid by Buyer to Seller to defray the expense incident to the processing, administration and collection of delinquent payments. Buyer agrees to reimburse Seller for any and all expenses Seller may incur, including reasonable attorneys' fees, in taking any action contemplated by this Paragraph. TOP
4. Taxes and Import Duties. The price of the Products or Services specified does not include federal taxes, state or local sales taxes, use taxes, occupational taxes or import duties. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes or import duties applicable to the manufacture, sale, price, delivery or use of the Products or Services provided by Seller, or in lieu thereof, Buyer shall provide Seller with a tax-exemption certificate acceptable to and considered valid by the applicable taxing authorities. TOP
5. Delivery and Risk of Loss. All sales are FOB\FCA Seller’s U.S. dock. Risk of loss, destruction of or damage to the Products shall be Seller’s until delivery of the Products to a common carrier at Seller’s U.S. dock. Thereafter, title shall pass to Buyer and Buyer shall be fully responsible, and shall hold Seller harmless, for and assume all risk of loss, destruction of or damage to the Products. Loss or damage to the Products after risk of loss has passed to Buyer will not release or excuse Buyer from its obligations under this Agreement to Seller, including the obligation to make full payment of the purchase price. Seller reserves the right to pack or ship orders in the most economical manner. However, where Buyer requests special packaging or shipping, any additional cost will be billed to and be the responsibility of Buyer. TOP
6. Delivery Delays. Seller shall use reasonable efforts to make prompt deliveries in a commercially reasonable manner. Delivery dates and estimates are, however, not guaranteed. Seller disclaims any liability or responsibility, and Buyer shall hold Seller harmless, for the late or non-delivery of Products or Services. Buyer has no right to delay or defer delivery or acceptance. TOP
7. Rejection and Revocation of Acceptance. Any rejection or revocation of acceptance of Products or Services by Buyer must be made within thirty (30) days of delivery of such Products and Services and any attempted rejection or revocation of acceptance of such Products and Services made thereafter shall be null and void unless agreed to in writing by Seller. Failure to make a claim within such period shall be conclusive evidence that the Products and Services were satisfactory in all respects and supplied in accordance with ordered specifications. TOP
8. LIMITED WARRANTY AND DISCLAIMER OF ALL OTHER WARRANTIES. (a) SELLER WARRANTS FOR A PERIOD OF 30 DAYS COMMENCING ON THE DATE OF DELIVERY THAT THE PRODUCTS AND SERVICES (i) MEET OR EXCEED THE WRITTEN SPECIFICATIONS SET FORTH ON SELLER’S ORDER ACKNOWLEDGEMENT, AND (ii) ARE FREE OF MATERIAL DEFECTS IN DESIGN OR WORKMANSHIP. BUYER’S EXCLUSIVE REMEDY IN CONNECTION WITH THESE EXPRESS WARRANTIES IS THE REPAIR OR REPLACEMENT OF THE PRODUCTS OR SERVICES OR, AT SELLER’S OPTION, A REFUND OF THE PURCHASE PRICE, IF ANY, ACTUALLY PAID BY SELLER FOR THE NONCONFORMING PRODUCTS OR SERVICES. IF BUYER OBTAINS A REFUND OF THE PURCHASE PRICE, BUYER SHALL FIRST SHIP THE PRODUCTS SUBJECT TO THE REFUND TO SELLER AND TRANSFER TITLE TO SAID PRODUCTS TO SELLER AS SOON AS PRACTICABLE. TOP
(b) EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 8, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES IN THIS AGREEMENT OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ALL WARRANTIES, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
(C) ANALYSES ARE CARRIED OUT IN THE BEST CONDITIONS AVAILABLE TO SELLER IN ACCORDANCE WITH TECHNOLOGY DEVELOPED BY SELLER. INTERPRETATIONS ARE BASED UPON ANALYSIS RESULTS AND ON INFORMATION PROVIDED BY BUYER. INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS ARE PREPARED WITH A REASONABLE DEGREE OF CARE BUT BUYER ACKNOWLEDGES THAT IN ANY EVENT THEY CAN ONLY BE CONSIDERED AS BEING THE SIGNATORY’S OPINION. SELLER CANNOT GUARANTEE THAT THESE WILL ALWAYS BE CORRECT OR ABSOLUTE, PARTICULARLY IN VIEW OF THE CONSTANT EVOLUTION AND RE-EVALUATION OF SCIENTIFIC KNOWLEDGE AND REGULATIONS. IN ALL CASES BUYER MUST VERIFY THE VALIDITY OF ANY INTERPRETATIONS, ASSESSMENTS AND CONCLUSIONS SUPPLIED BY SELLER IF IT WISES TO RELY ON THE SAME IN RESPECT OF MATTER OF IMPORTANCE AND SHALL DO SO AT ITS OWN RISK.
(D) ANALYSIS RESULTS ARE PREPARED AND SUPPLIED EXCLUSIVELY FOR THE USE OF BUYER AND MAY NOT BE DIVULGED TO A THIRD PARTY WITHOUT THE PRIOR WRITTEN AGREEMENT OF SELLER, WHICH CONSENT MAY BE WITHHELD BY SELLER IN ITS SOLE AND ABSOLUTE DISCRETION. IF SUCH WRITTEN CONSENT IS GIVEN BY SELLER, BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FOR ANY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THE DIVULGENCE OF SUCH RESULTS TO A THIRD PARTY.
(E) EACH ANALYTICAL REPORT RELATES EXCLUSIVELY TO THE PRODUCT RECEIVED BY SELLER AS SPECIFIED IN THE WRITTEN ACCEPTANCE OF ORDER BY SELLER. SELLER ACCEPTS NO RESPONSIBILITY, AND BUYER SHALL HOLD SELLER HARMLESS, FOR THE WAY THE SAMPLE WAS COLLECTED, STORED OR DELIVERED TO SELLER UNLESS SELLER HAS SPECIFICALLY AGREED IN WRITING TO UNDERTAKE SUCH TASKS ITSELF.
(F) SELLER ACCEPTS NO RESPONSIBILITY, AND BUYER SHALL HOLD SELLER HARMLESS, FOR ANY LOSS OR DAMAGE THAT MAY OCCUR TO ANY SAMPLE IN TRANSIT. BUYER WILL AT ALL TIMES BE LIABLE FOR THE SECURITY, PACKAGING, AND INSURANCE OF THE SAMPLE FROM ITS DISPATCH UNTIL IT IS DELIVERED TO THE OFFICE OR LABORATORIES OF SELLER. SELLER WILL USE COMMERCIALLY REASONABLE CARE IN HANDING AND STORING SAMPLES, BUT SELLER SHALL NOT BE HELD RESPONSIBLE, AND BUYER SHALL HOLD SELLER HARMLESS, FOR ANY LOSS OR DESTRUCTION OF SAMPLES EVEN AFTER THEIR RECEIPT AT ITS LABORATORIES.
(G) BUYER WARRANTS AND REPRESENTS TO SELLER THAT ALL SAMPLES TO BE SENT TO SELLER FOR ANALYSIS SHALL BE IN A SAFE AND STABLE CONDITION AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FOR ANY AND ALL DAMAGES WHICH SELLER MAY SUFFER AS A RESULTS OF ANY SAMPLE NOT BEING IN A SAFE OR STABLE CONDITION, NOTWITHSTANDING THAT BUYER MAY HAVE GIVEN AN INDICATION ON THE SAMPLE OR ANY ORDER FORM OF ANY PERCEIVED PROBLEM WITH THE SAMPLE. TOP
9. Sample Storage. Samples will be destroyed by Seller 30 days after the analysis has been completed by Seller. If Buyer desires a sample to be retained by Seller, Buyer must so request in writing, in which case the terms on which the sample will be retained must be agreed in writing between Seller and Buyer. In the absence of such mutual agreement, Seller shall have no obligation to retain the sample. TOP
10. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES WAIVE AND RELINQUISH ANY CLAIMS, DEMANDS, AND CAUSES OF ACTION OR RECOVERIES FOR PUNITIVE DAMAGES, EXEMPLARY DAMAGES, OR STATUTORY DAMAGES. IN NO EVENT WILL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SALE OF THE PRODUCTS OR PROVISION OF SERVICES, INCLUDING ANY LOST REVENUES OR PROFITS, CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. NOTWITHSTANDING THE TERMS OF ANY LIMITED WARRANTY, AND/OR IN THE EVENT ANY LIMITED WARRANTY PROVIDED TO BUYER FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL SELLER’S ENTIRE LIABILITY TO BUYER (IN TORT, CONTRACT, FOR INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE) EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS AND/OR SERVICES SUBJECT TO THE CONTRACT OR AGREEMENT IN DISPUTE, OR ANY DEFECTIVE OR NONCONFORMING PORTION THEREOF, WHICHEVER IS THE LESSER AMOUNT. BOTH PARTIES UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY ALLOCATES RISK OF NONCONFORMING GOODS BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OTHER APPLICABLE LAW. THE PRICE OF THE PRODUCTS AND SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY, INCLUDING THE EXCLUSION OF SPECIAL, INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES, IN THIS AGREEMENT. TOP
11. Default. The failure of Buyer to perform any obligation hereunder, the failure to materially perform any other agreements between Buyer and Seller, or Buyer’s bankruptcy, insolvency, fraud or inability to pay its debts as they mature, shall constitute a default under this Agreement and shall, in addition to any other remedies at law or in equity, afford Seller, among other remedies, all of the remedies of a secured party under the applicable Uniform Commercial Code. In the event of such default, Seller may, in addition to pursuing any of the remedies provided by law, equity or as set forth in this Agreement, refuse to provide warranty, repair and/or maintenance Service and/or deliver Products under this or any Service or maintenance agreement relating to the Products, and may also cancel this Agreement and any pending orders without liability to Buyer. In the event of default, Seller may also, without limiting its other remedies, terminate this Agreement and apply any and all payments received hereunder or otherwise from Buyer to any damages that Seller may have as a result of the breach of this Agreement or otherwise. To the fullest extent permitted by law, all of Seller’s rights and remedies under this Agreement shall be cumulative and not exclusive. TOP
12. Reservation of Rights: The sale of Products and Services covered by this Agreement shall not confer upon Buyer any license or right under any patents, trade secrets or other proprietary information owned or controlled by Seller, or the right to otherwise utilize such proprietary information, it being specifically understood and agreed that all such rights are reserved to Seller. TOP
13. Waiver and Severability. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. If any term, covenant, warranty, remedy or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Agreement shall be deemed valid and enforced to the fullest extent permitted by law. TOP
14. Force Majeure. Seller shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Products or provide Services, arising from any delay or failure to perform all or any part of this Agreement as a result of causes, conduct or occurrences beyond Seller’s reasonable control, including, but not limited to, commercial impracticability, fire, flood, earthquake, lightning, storm, accidents, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), shortages of energy or raw materials, acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to Seller. TOP
15. Indemnification. To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller harmless from any and all claims, demands, subrogation claims by third parties, including Buyer’s insurers, causes of action, controversy, liabilities, fines, regulatory actions, seizures of Product, losses, costs, expenses (including, but not limited to attorneys’ fees, expert witness expenses and litigation expenses) (hereinafter “Claim”), arising from or in connection with any Claim asserted against Seller for any damage, environmental liability, patent or intellectual property infringement caused by Buyer’s use, modification or alteration of the Products, injury, death, loss, property damage, delay or failure in delivery of Seller’s Products or any other Claim, whether in tort, contract, breach of warranty or otherwise, relating to this Agreement, the business relationship between the parties, the Products or Services provided hereunder, or Buyer’s breach of this Agreement. Notwithstanding the foregoing, Buyer has no indemnity obligation to Seller to the extent that any Claims result from the gross negligence of Seller. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer’s contribution liability to Seller, and any and all statutory or common law lien rights or Claims against Seller arising from any applicable workers compensation or disability acts, which Buyer might or could assert against Seller or Seller’s insurers in the event of the personal injury or death of Buyer’s employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, Claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives or servants. TOP
16. Relationship. The relationship between Seller and Buyer shall be that of independent contractors and neither party, its agents and employees, shall under no circumstances be deemed the employees, distributors, franchisees, agents or representatives of the other party. TOP
17. Assignment and Modification. The rights and obligations of Buyer under this Agreement shall not be assignable with the prior written consent of Seller. This Agreement shall not be modified, altered or amended in any respect except by a writing signed by the parties. Any variation, modification or addition to the terms set forth in this Agreement shall be considered a material modification and shall not be considered part of this Agreement. TOP
18. Governing Law. This Agreement and all claims and causes of action shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of California. The sole and exclusive venue for all claims and causes of action between the parties shall be the state or federal court located in Orange County, California. TOP
Covance Foods Terms & Conditions
Covance provides services related to food, dietary supplement and infant formula testing or consultancy services (“Services”). You are a customer (“Customer”) who requested said services. Unless otherwise agreed in writing, this contract determines the terms and conditions upon which the Customer agrees to be bound to use the Services of Covance. Covance reserves the right to revise and update these terms and conditions. All such changes take effect once they have been notified to the Customer. Notwithstanding anything herein to the contrary, to the extent the parties have entered into a master services agreement, the terms of such master services agreement shall supersede these terms and conditions
1.1 These Terms and Conditions (hereinafter referred to as “Terms and Conditions”) constitute the entire agreement between the Covance and the Customer and apply (subject to above) to all Services provided by Covance unless otherwise agreed in writing. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Covance which is not set out in these Terms and Conditions.
1.2 The placing of an order for sample testing and/or consultancy services with Covance shall constitute an offer by the Customer to purchase such services in accordance with these Terms and Conditions, which shall only be deemed to be accepted when Covance receives such order.
2 Food and Dietary Supplement Testing & CONSULTING
2.1 Covance provides services related to food and dietary supplement related testing and/or consulting services. If the Customer requires testing of any material or samples for pharmaceutical purposes, it must notify Covance in writing and agree the separate testing standards that shall apply.
2.2 Other than separate testing standards for materials or samples to be used for pharmaceutical purposes, all other terms and conditions herein shall apply to the Services provided by Covance in accordance with Section 1. The results of any analysis performed by Covance relate only to the actual sample that was submitted to Covance.
3 Price and Payment
3.1 The price for the Services does not include any local, state, federal or foreign sales or use taxes, excise taxes, goods and services tax, value added tax, country-specific business or professional services tax or similar tax on international services or foreign entities providing services, consumption taxes or shipping charges. Customer shall assume and shall be solely responsible for any such taxes.
3.2 Taxes imposed on Covance’s income shall remain the responsibility of Covance.
3.3 Invoices are due and payable in full within thirty (30) days from date of invoice. Late payments may be subject to late payment fees.
3.4 The Customer shall pay all amounts due to Covance in connection with the performance of the Services in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Covance may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Covance to the Customer.
3.5 For consulting services, an invoice for a fifty percent (50%) deposit will be issued once a signed copy of the proposal or agreement and a purchase order (if required) are received by Covance (“Initial Payment”). The remaining consulting and associated direct expenses will be invoiced upon project completion.
4 Conditions of Sale
4.1 The Customer, for purposes of all transactions, shall be the party who pays Covance for the Services even if, at the request of Customer, the study reports or other information is provided to a third party.
4.2 These Terms and Conditions shall apply to all aspects of the Services and are the only terms and conditions upon which Covance will perform the Services for the Customer to the entire exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in any other documentation or implied by law, trade custom, practice or course of dealing shall form part of any contract relating to the Services and the Customer waives any right that the Customer might otherwise have to rely on such terms or conditions. Any terms and conditions that are inconsistent with or supplemental to these Terms and Conditions are expressly rejected unless otherwise expressly agreed in writing by Covance.
4.3 No modification of these Terms and Conditions shall be binding or enforceable unless expressly agreed in writing by Covance.
5 SERVICE Terms
5.1 Covance warrants that the Services will be provided using reasonable care and skill and that it shall use commercially reasonable efforts in accordance with industry standards to provide the necessary facilities, supplies and staff to perform the Services. The foregoing constitutes Covance's sole warranty and any other express or implied warranties are excluded to the fullest extent permitted by law, including that any results or report will meet the approval of a regulatory agency. Covance is not responsible to the Customer for any repeat testing that does not meet regulatory approval.
5.2 The Customer shall provide Covance with sufficient amounts of all samples to be tested (the “Samples”) together with all other information necessary for Covance to perform the Services including such relevant data relating to the storage and safety requirements of the Samples. The Customer shall provide the Samples and information to Covance two (2) weeks before the agreed Services start date. If the Customer is unable to supply the Samples and/or information by such time, Covance may reallocate resources and shall not be obligated to perform the Services within the agreed Service start or completion dates.
5.3 Except as otherwise directed by the Customer, Covance shall retain all Results (meaning: (i) all materials, data, documents and information produced or developed by Covance specifically as a result of the Services and related to the Samples and/or the Customer information; and (ii) the study records if applicable) relating the Services during the term of the Services. Upon completion or earlier termination of the Services or earlier if requested by the Customer, the Results for the applicable Services shall be delivered to the Customer. Covance shall not be required to return ancillary documents related to the Results (including invoices and other similar records). Notwithstanding the foregoing, Covance shall be permitted to retain archival copies of such records if and to the extent that such Results are required to be stored or maintained by Covance pursuant to regulatory requirements or other requirements.
6.1 Any Samples submitted to Covance for analysis shall be retained for a minimum period of thirty (30) days after the report of analysis is issued. The Customer may request that Covance retain the Samples for a longer period at an additional cost. Any extended storage requirements of the Samples shall be brought to the attention of Covance before or at the time the Samples are received by Covance. Covance, at its discretion, may charge for such extended storage and will send the details of such charges to the Customer upon request.
6.2 Analytical method summaries can be supplied to Customer upon request. Detailed copies of any in-house laboratory procedures may be reviewed by Customer or its agent during a site visit, but may not be copied or used without the consent of Covance. Analyses conducted by Covance on Samples for non-pharmaceutical purposes shall be performed in compliance with applicable regulations for Food, Dietary Supplements, and Infant Formula.
6.3 Data and Certificates of Analyses (“CoA”) for non-pharmaceutical sample analysis will be maintained by Covance for a minimum period of five (5) years from the date of testing.
6.4 Any analysis conducted by Covance on Samples for pharmaceutical purposes or for the purposes of supporting work under regulations other than those governing food, dietary supplements, or infant formula shall be subject to separate regulatory standards to be agreed by Covance and Customer. Covance does not represent or warrant that its analytical methods have been validated for the Customer’s specific matrix unless such method validation is included in a separate contract with the Customer. The storage of data and reports for pharmaceutical-use Samples shall be agreed in advance by the parties in accordance with regulatory guidelines.
7. Report Terms
7.1 Any data analyses and reports will be prepared in Covance's standard format and in accordance with Covance's standard operating procedures, unless otherwise agreed in writing. The Customer shall notify Covance in writing before the commencement of any of the Services if there are any specific documentation requirements relating to the testing.
7.2 Any Certificates of Analysis of testing (“CoA”) issued by Covance shall report only those Samples tested for the Customer. Although Covance's standard testing process may determine the presence of additional (i.e., un-requested) compounds, the CoA will not include results of such additional compounds. Upon receipt of any CoA, the Customer may contact Covance if a complete listing of all compounds determined during testing is required. Such reporting may be at additional cost.
7.3 The term "Less Than" or the symbol “<” is used to signify the lower limit of quantitation of the procedure under the conditions employed. The use of the term "Less Than"/< does not imply that traces of analyte were present. The term "None Detected" is used to report assay results where detection limits have been established for the method, but acceptable residue levels have not been defined by the industry or by national law, or when the method does not define detection limits.
8.1 Any report provided by Covance is submitted to Customer on a confidential basis. No reference to the work, the results or Covance, in any form of advertising, news release or other public announcements, may be made without prior written consent of Covance.
8.2 Neither party will disclose the other party’s confidential or proprietary information or any information related to or associated with the Services to any third party, including but not limited to testing samples, methodology, procedures, visual data obtained during a visit, research received from the other party without such party’s written consent, unless such information (i) is already known to the receiving party, (ii) is or becomes publicly available through no fault of the receiving party, (iii) is received from a third party which has the legal right to disclose it to the receiving party, (iv) is required for the pursuit of regulatory approval of product connected to testing, or (v) is required to be disclosed by any process of law. If Covance is required by court order to provide testimony or records regarding any Customer test in any legal proceeding, Customer shall reimburse Covance its out-of-pocket costs plus a reasonable hourly fee for its employees’ time in such proceeding.
8.3 Customer representatives granted access to Covance's facilities for a laboratory visit may have access to Covance confidential and proprietary information, including, but not limited to Covance’s sales, costs, customers, employees, products, services, apparatus, equipment, processes, formulae and marketing information or the organization, business or finances of Covance. All such Covance confidential and proprietary information obtained or observed by Customer during such visits shall remain the sole property of Covance. The Customer agrees to keep such information confidential and shall not use or disclose it to any third party without Covance's prior written consent.
9. LITIGATION SUPPORT SERVICES
9.1 Before the commencement of the Services, the Customer shall notify Covance of any Services that are related to, or which may be used by the Customer for litigation support (“Litigation Support Services”). Upon notification for Litigation Support Services, Covance shall, in its reasonable sole discretion, decide if it is willing to perform such services.
9.2 In the event that Covance decides to perform the Litigation Support Services, the Customer represents and warrants that any such Services shall not be used against other food or supplement manufacturers, sellers or their agents. The Customer shall indemnify, defend and hold harmless Covance, its affiliates and their respective, officer, directors, employees and agents (the “Covance Group”) from an against all losses, damaged, costs and expenses (including reasonable legal fees) arising from a claim, demand, assessment, action, suit or other proceeding caused by a breach of this Section.
9.3 If Covance is required to provide testimony or records regarding any of the Services provided hereunder including Litigation Support Services in any legal or administrative proceeding, for any reason other than improper performance by Covance, then the Customer shall reimburse Covance for its reasonable costs, including the cost for time spent preparing and providing such information.
10.1 Covance may terminate these Terms or Conditions by giving not less than fifteen (15) days' notice in writing to the Customer. Covance shall have no liability in connection with termination of these Terms and Conditions pursuant to this Section.
10.2 Either Party may terminate these Terms and Conditions immediately on notice in writing if the other Party: (a) commits a material breach of its obligations under these Terms and Conditions and fails to remedy such breach within fourteen (14) calendar days of written notice from the non-breaching Party requiring it to be remedied; (b) commits any act or omission which brings or is likely to bring the Party or its business interests into disrepute or which damages or is likely to damage those interests; or (c) undergoes a change of control.
10.3 Either Party may terminate these Terms and Conditions immediately on notice in writing if: (a) a petition is filed, a notice is given, an order is made or a resolution is passed for the winding up of a Party or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of a Party; or (b) an order is made for the appointment of an administrator to manage the affairs, business and property of a Party or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Party or notice of intention to appoint an administrator is given by the other party; or (c) a receiver is appointed over any of a Party’s assets or undertakings or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of a Party or if any other person takes possession of or sells a Party’s assets; or (d) a Party makes any arrangement or composition with all or any class of its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or (e) a Party is unable to pay its debts when they fall due; or (e) if a Party ceases, or threatens to cease, to carry on business; or (f) any event analogous to the circumstances in the sub-sections above occurs in any relevant jurisdiction.
11.1 Nothing in these Terms and Conditions is intended to restrict or exclude the liability of either party that cannot be excluded or restricted as a matter of law.
11.2 In the event of a material error by Covance: (i) in the performance of analysis which renders the CoA invalid or (ii) in the performance of any consulting services, Covance's sole obligation to Customer shall be for Covance, at the Customer’s option, to either: (a) repeat the defective part of the Services at Covance's own cost, or (b) refund or credit to the Customer the fees attributable to such default.
11.3 In no event shall Covance’s liability in connection with any sale hereunder exceed the price paid by the Customer to Covance under these Terms and Conditions. Covance’s liability, regardless of the form of action, shall not exceed the foregoing limitation of liability, except in the case of a breach of confidentiality, intellectual property rights, or Covance’s indemnification obligations.
11.4 Covance shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any: (a) loss of profit, revenue, business, savings and/or goodwill (whether direct or indirect); or (b) consequential, special, punitive, or exemplary damages, or any other loss of an indirect nature, arising under or in connection with these Terms and Conditions.
11.5 Covance’s liability to Customer with respect to any materials Customer requests be shipped by a carrier and which have been subject to any loss, damage, delay or non-delivery/non-collection caused by such carrier shall be limited to the amount recovered by Covance from such carrier under any applicable national/international conventions, rules or agreements.
12.1 Covance shall indemnify Customer and its affiliates and their respective officers, directors and employees (“Customer Group”) from any loss, cost, damage or expense (including reasonable attorneys’ fees) resulting from any lawsuit, action, claim, demand or proceeding by a third party (“Claim”) to the extent arising from the negligence, gross negligence or intentional misconduct or inaction of Covance, except to the extent caused by Customer Group’s negligence, gross negligence or intentional misconduct or inaction
12.2 Customer shall indemnify Covance and its affiliates and their respective officers, directors and employees (“Covance Group”) from any Claim arising from (i) Covance’s execution and/or performance of its obligations under this Agreement, (ii) the harmful or otherwise unsafe effect of any sample tested, (iii) Customer’s use of the test results or its use or marketing of any Sample tested by Covance, or (iv) the negligence, gross negligence, intentional misconduct or inaction of Customer Group, except to the extent caused by Covance’s negligence, gross negligence or intentional misconduct or inaction.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 All pre-existing intellectual property belonging to or licensed to a Party or other intellectual property created outside the scope of the Services (“Background IP”) is and shall remain the exclusive property of the Party owning it and except as expressly provided in these Terms and Conditions, no Party shall acquire any rights in or to the Background IP of the other Party.
13.2 The Customer acknowledges that Covance owns or is licensed to use Covance Property. The Parties agree that any improvement, enhancement or modification made, conceived or developed by Covance to any Covance Property in the performance of the Services which is not specific or related directly to any materials to be tested or used in the performance of the Services as provided to Covance by the Customer or that are the subject of the Services (“Test Materials”), shall be deemed Covance Property and shall vest absolutely and exclusively in Covance. In addition, Covance shall be entitled to use and exploit any skills, techniques or know-how acquired, developed or used in the course of the Services and a Work Order and not related to the Test Materials. Strategic insight and proposed project design and scope provided in any quotation by Covance is and shall remain the property of Covance and may be used by the Customer only to assess whether it wishes to pursue such work with Covance.
13.3 Without prejudice to Sections 12.1 and 12.2, and upon receipt by Covance of payment in full of all amounts due and payable for the Services, the Customer shall have title to the Deliverables and all intellectual property rights arising therefrom. Covance agrees to assign such rights to the Customer except that one (1) copy of any final report may be retained by Covance for regulatory or legal compliance purposes. Notwithstanding the foregoing, the Customer hereby grants Covance a non-exclusive, perpetual, irrevocable, royalty-free licence to aggregate and use any System Data produced by or for Covance as part of the Services with other System Data owned or licenced by Covance, provided that Covance shall not identify such data as belonging to the Customer.
13.4 Covance shall disclose to the Customer (or its nominee) all patentable invention or other registerable intellectual property rights discovered, conceived or made by Covance specifically as a result of performing the Services for the Customer and directly relating to the Test Materials and/or the Customer Information (“Inventions”) and, except in relation to Covance Property and at the Customer’s request (provided such request is made within one (1) year of disclosure), Covance shall assign to the Customer or its nominee (as appropriate) the rights to such an Invention. At the Customer's request and expense, Covance shall do all reasonably necessary acts to vest the Invention in the name of the Customer or its nominee. Where an Invention relates to laboratory testing methods, or processes relevant to Covance's business, the Customer hereby agrees to grant to Covance and its affiliates a non-exclusive, non-transferable, irrevocable, perpetual, royalty-free, worldwide license to use the Invention for the purposes of drug development services.
14 Force Majeure
14.1 No Party shall be in breach of this Agreement or Work Order nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement or Work Order as appropriate, if such delay or failure results from a Force Majeure Event. In such circumstances, any time specified for completion of performance in the Work Order or Protocol/Scientific Plan falling due during or subsequent to the occurrence of a Force Majeure Event shall be automatically extended for a period of time equal to such event. Covance shall promptly notify the Customer if, by reason of a Force Majeure Event, Covance is unable to meet any critical timelines or critical deliverables specified in any Work Order.
Should any part of the Services be rendered invalid as a result of a Force Majeure Event, Covance shall, upon written request from the Customer, and at the Customer’s sole cost and expense, repeat the affected part of the Services.
15.1 No Partnership or Agency. These Terms and Conditions are not intended to create or establish, nor shall be construed as creating or establishing, any agency, partnership or corporate relationship between the parties. Neither party is authorised to bind the other party, contractually or otherwise, nor provide any warranties or representations on behalf of the other party.
15.2 Third Party Rights. Covance and Customer are the sole parties to these Terms and Conditions and nothing herein shall give rise to or be construed as creating any direct or beneficial right in or on behalf of any third party including the right to enforce any of the terms of these Terms and Conditions.
15.3 Severability. If any provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision under this Section shall not affect the validity and enforceability of the rest of these Terms and Conditions.
15.4 Assignment. Covance may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under these Terms and Conditions and may subcontract or delegate in any manner any or all of its obligations under these Terms and Conditions to any third party or agent. The Customer shall not, without the prior written consent of Covance, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under these Terms and Conditions.
15.5 Amendments. No amendments or variations to these Terms and Conditions shall be made unless in writing and signed by the authorised signatories of both Covance and the Customer.
15.6 Waiver. The failure of a party to exercise or enforce any right under these Terms and Conditions shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter unless the same be agreed in writing signed by Covance and the Customer.
15.7 Notices. Any notice, consent, approval, agreement or other document required under these Terms and Conditions shall, in the absence of any express provision to the contrary shall be:
a. in writing in the English language and shall be deemed to have been duly given if left at or sent by hand or by registered post to a party at the registered company address of such party or such other address as one party may from time to time designate by written notice to the other; and
b. deemed to have been received by the other party: (i) two (2) business days following the date of dispatch if the notice or other document is sent by registered post; (ii) seven (7) business days following the date of dispatch if the notice or other document is sent by registered airmail post, or; (iii) simultaneously with the delivery if sent by hand.
a. Debarment. Covance represents and warrants that to its knowledge it does not use and shall not use in any capacity the services of any person debarred under subsections §306(A) or §306(B) of the U.S Generic Drug Enforcement Act 1992, disqualified as a testing facility under 21 CFR Part 58 Subpart K. or disqualified, restricted or having made assurances as a clinical investigator under 21 CFR §312.70 or otherwise debarred, restricted or disqualified under the corresponding laws of an applicable jurisdiction in connection with any of the Services performed under this Agreement. Covance shall promptly disclose in writing to the Customer if it becomes aware that any: (a) person who is performing the Services is debarred, disqualified or restricted; or (b) action, suit, claim, investigation or legal or administrative proceeding is pending relating to the debarment, disqualification, restriction of Covance or any person performing Services under this Agreement.
b.Anti-Bribery. Each Party agrees that it has not and shall not, either directly or indirectly, engage in the following conduct: bribery or offer, promise, authorize to pay, or make any improper payment of any monies or financial or other advantage, including cash, loan, gift, travel, entertainment, hospitality, facilitation payment, kickback, political or philanthropic contribution, anything of value, or any other perceived benefit to improperly obtain or retain a business advantage in violation of any Anti-Corruption Laws and further, each Party agrees that it shall not take any action that would cause the other Party to be in violation of such Anti-Corruption Laws.
c. Trade Control. Notwithstanding any other provision of this Agreement to the contrary, each Party shall comply with, and retain responsibility for its compliance with, all applicable export control laws (e.g., the U.S. Export Administration Regulations) and economic sanctions programs (e.g., economic sanctions maintained by the U.S. Treasury Department, as well as Specially Designated Nationals and Blocked Persons (SDNs)) relating to its respective business, facilities, and the provision of services to third parties (collectively, Trade Control Laws). It shall be in the sole discretion of Covance to refrain from being directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable Trade Control Laws, including sanctions currently in place against Cuba, Iran, North Korea, Sudan, Syria and SDNs.
16 Where the contracting entity is Covance Laboratories Inc
16.1 This Section shall be deemed to be incorporated into these Terms and Conditions solely where the Customer purchases services from Covance Laboratories Inc., whose principal address is 3301 Kinsman Boulevard, Madison, Wisconsin 53704. USA.
16.2 The Contracts (Rights of Third Parties) Act 1999 is expressly excluded from these Terms and Conditions.
16.3 These Terms and Conditions and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in all respects in accordance with the laws of Delaware.
17 Where the contracting entity is Covance Laboratories Limited
17.1 This Section shall be deemed to be incorporated into these Terms and Conditions solely where the Customer purchases services from Covance Laboratories Limited, a company registered in England & Wales with company number 01171833 and whose registered office is at Otley Road, Harrogate, North Yorkshire, HG3 1PY, United Kingdom.
17.2 The Contracts (Rights of Third Parties) Act 1999 is expressly excluded from these Terms and Conditions.
17.3 These Terms and Conditions and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in all respects in accordance with the laws of England and the English courts shall have exclusive jurisdiction in all matters relating to these Terms and Conditions.
18 Where the contracting entity is Covance Asia Pty Limited
18.1 This Section shall be deemed to be incorporated into these Terms and Conditions solely where the Customer purchases services from Covance Asia Pte. Limited, a company registered in Singapore with company number 199608825M and whose registered office is at 1 International Business Park, #01-01, The Synergy, Singapore 609917.
18.2 The Contracts (Rights of Third Parties) Act (Cap 53B) is expressly excluded from these Terms and Conditions.
18.3 These Terms and Conditions and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in all respects in accordance with the laws of Singapore and the Singaporean courts shall have exclusive jurisdiction in all matters relating to these Terms and Conditions.