Terms and Conditions
of Sales

Products on Catalog

1. AGREEMENT TERMS

1.1. General Terms. These terms and conditions, our quotation (if any) comprise the agreement (“Agreement”) between you (the “Buyer” or “you” or “your”) and AB Validation Inc. (known as IVANO Bioscience) (the “Provider” or “we” or “our”). Unless your order is subject to a valid, written, executed agreement between you and IVANO Bioscience or any of the IVANO Bioscience group companies, in which case such agreement applies, you agree to accept and be bound by this Agreement by ordering products on www.ivanobioscience.com or if you receive ordering or sales documents that reference these terms and conditions. This Agreement is the complete and exclusive contract between us with respect to your purchase of the products. Provider and Buyer are hereinafter collectively referred to as the “Parties” and each, individually, a “Party”.

1.2. Order of Precedence. Unless otherwise provided in this Agreement, conflicts or inconsistencies between any provisions of this Agreement and any accepted Purchase Order, this Agreement will prevail. Provider expressly reject any different terms or provisions contained in any document provided by Buyer, and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this Agreement will serve as the governing terms for the contract between Buyer and Provider.

1.3. When Agreement takes Effects. This Agreement between the Buyer and the Provider is created when Provider issues an Acceptance Notice (as defined below) confirming that Provider has accepted the Purchase Order (as defined below). Once accepted by Provider, such Purchase Order shall be binding upon Buyer and such Purchase Order may only be cancelled or amended with Provider’s written approval.

2. PURCHASE ORDERS

2.1. Quote. Upon request of the Buyer through Provider’s website, the Provider will issue Quotes for the products which may contain (i) a description of the products to be manufactured and supplied by the Provider; (ii) the Specifications of the products; (iii) the quantity of products available; (iv) the price of the products; (v) the initial advanced payment payable by the Buyer to the Provider (if any); (vi) the expiry date of the Quote; and (viii) any other terms and conditions of the Provider. “Quote” shall mean an offer issued by the Provider to the Buyer for the manufacture and supply of products.

2.2. Acceptance of the Quote. The Buyer can accept a Quote issued by the Provider prior to its expiry date, or within ten (10) business days from receipt if no expiry date is specified on the Quote, by issuing a purchase order in the standard form approved by Provider (a “Purchase Order”), which will contain the quantity of products to be purchased by the Buyer and the requested delivery location and schedule of the products (which are subject to Provider’s approval). The products ordered under a Purchase Order submitted pursuant to a Quote may only be amended with the Provider’s written approval.

2.3. Acceptance and Rejection of Purchase Orders. Provider may accept each Purchase Order and confirm such acceptance to Buyer, by issuing to Buyer a written notice of acceptance thereof (each, an “Acceptance Notice”). Once accepted by Provider, such Purchase Order shall be binding upon Buyer and such Purchase Order may only be cancelled or amended with Provider’s written approval. Notwithstanding the foregoing, Provider may reject a Purchase Order in its sole discretion, which it may do without liability or penalty, and without constituting a waiver of any of Provider’s rights or remedies under this Agreement or any Purchase Order, by providing written notice to Buyer.

2.4. Change Orders. Once Buyer placed a Purchase Order, Buyer cannot cancel or change it without Provider written consent.

3. PRICE AND PAYMENT

3.1. Purchase. Subject to the terms and conditions of this Agreement, and unless specified otherwise in an Acceptance Notice, the Buyer shall purchase all products for which a Purchase Order has been submitted in accordance with a Quote and accepted in accordance with an Acceptance notice issued by the Provider.

3.2. Determining Price. Provider may change its prices at any time without notice. Prices quoted are valid for thirty (30) days, unless Provider states otherwise in writing. Subject to the terms and conditions of this Agreement, the Buyer shall purchase all products for which a Purchase Order has been submitted and accepted by an Acceptance Notice issued by the Provider.

3.3. Payment. At the time of issuance of the Acceptance Notice, the Provider shall issue an invoice to Buyer for products bought pursuant to a Purchase Order in accordance with a Quote. Invoices are exclusive of any sales goods and services, excise, value added or similar taxes of any kind, whether federal, provincial or any other jurisdictional level and such taxes shall be charged to Buyer by Provider as a separate item on the invoice, to the extent reasonably possible. Buyer shall pay all properly invoiced amounts due to Provider within thirty (30) days after Buyer’s receipt of such invoice. All payments hereunder must be in Canadian dollars and made by bank transfer, or other payment methods as requested by the Provider, and according to the terms and conditions indicated on the invoice issued by the Provider to the Buyer with the Acceptance notice.

3.4. Late Payments. Provider will be entitled to charge interest of 1.5% per month (18% per annum) on any unpaid fees that are more than thirty (30) days past due. If Buyer has any reasonable and justified objection whatsoever to an invoice, the supporting documentation, or the performance of the Agreement by Provider, then Buyer shall, within a maximum delay of seven (7) days of receipt of the invoice, notify Provider of the nature of the objection, and the Parties shall take commercially reasonable efforts to resolve such dispute within thirty (30) days. After such delay, all invoices shall be deemed accepted by Buyer and be payable.

4. DELIVERY AND ACCEPTANCE

4.1. Delivery of Products, Transfer of Risks, and Property. Provider shall make reasonable efforts to deliver the products on the Delivery Date as indicated on a Purchase Order. Unless otherwise specified in an Acceptance Notice, all products shall be provided to the Buyer EXW at the location (the “Delivery Location”) and the date (the “Delivery Date”) specified in the applicable Purchase Order and in accordance with the terms and conditions of this Agreement. Provider will use commercially reasonable efforts to notify Buyer of any anticipated delays. “EXW” shall have the meaning set out in the 2020 Incoterms published by the International Chamber of Commerce as modified from time to time.

4.2. Disclosure of the Product. Provider shall provide Buyer with all the Specification, documentation, information and updates intended for the use of the product by Buyer, and shall make available to Buyer by telephone, e-mail or facsimile, where reasonably warranted, the service of competent and knowledgeable technical personnel to confer with competent Buyer technical personnel in order to facilitate the exchange of information. “Specifications” shall mean the manufacturing, materials, packaging, labelling, testing, performance, technical and other similar requirements for the products.

4.3. Failure to Accept Delivery. If, for any reason, Buyer fails to accept delivery of any of the products on the date fixed pursuant to the Purchase Order or otherwise notified to Buyer by Provider: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Provider, at its option, may store the products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). After thirty (30) days, Provider shall be free to dispose of the products in its sole discretion and Buyer shall pay any amounts invoiced with respect to such products.

4.4. Acceptance of Products. Buyer shall inspect the products received under this Agreement within ten (10) days from the delivery of the products to Buyer and shall either accept, or, if the products have defects or do not conform with the Specifications, reject the products by submitting a written notice of non-compliance to Provider. Buyer will be deemed to have accepted the products unless it provides Provider with a written notice of non-compliance during such ten (10) day period. If Buyer timely notifies Provider of any defective or non-conforming products, Provider shall, in its reasonable discretion, determine whether such products are effectively defective or non-compliant with the Specifications. If Provider determines that such Products are defective or non-compliant, Provider shall, in its sole discretion, either (i) replace such defective or non-conforming products, at Provider’s sole cost, or (ii) refund to Buyer such amount paid by Buyer to Provider for such defective or non-compliant products.

4.5. Exclusive Remedy. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PARAGRAPH 4.4 CONTAINS BUYER’S EXCLUSIVE REMEDY FOR DEFECTIVE OR NON-CONFORMING PRODUCTS. OTHER THAN AS EXPRESSLY SET FORTH IN PARAGRAPH 4.4, THE PRODUCTS ARE SUPPLIED BY PROVIDER ON AN “AS IS” BASIS AND PROVIDER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, PERFORMANCE, NON-INFRINGEMENT, AND THOSE ARISING FROM STATUTE, TO THE EXTENT PERMITTED BY LAW.

4.6. Return. No products may be returned without the Provider’s written authorization (the “Return to Manufacturer Authorization” or RMA”) (“Returned products”). The Buyer shall use the carrier specified by the Provider in the RMA to return the Returned products to the Provider’s place of business located at the address specified in the RMA, failing which the Buyer shall be responsible for all claims and incur all liability, as between the Parties, with respect to the delivery and transportation of the Returned products.

5. INTELLECTUAL PROPERTY

5.1. Use Limitations. As between the Parties, Provider exclusively own all Intellectual Property rights relating to the products. Unless Provider expressly state otherwise, the sale of products to Buyer grants only a limited, nontransferable right under Provider’s Intellectual Property to use the quantity of products purchased from Provider for the Buyer internal research purposes only. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by Provider in writing, Buyer will not modify, change, remove, cover or otherwise obscure any of Provider brands, trade or service marks on the products. Nothing in the Agreement limits Provider ability to enforce Provider’s Intellectual Property rights with respect to the products, Specifications and services provided hereunder. “Intellectual Property” shall mean any right, title or interest in or to any intellectual property rights of any kind or nature, Canadian or foreign, registered, pending registration or not registered, including, but not limited to, any copyright, trademark, trade name, domain name, patent, invention, industrial design, know-how, trade secret, as well as any modification, adaptation, variation, addition, improvement or derivative in any of these elements, including, but not limited to, the right to take legal and administrative proceedings against any past, present or upcoming violation of these Intellectual Property.

5.2. Commercial Applications; Additional Rights. Unless expressly state otherwise, Provider give no rights to use the products in any commercial application, including without limitations manufacturing, quality control, commercial services such as reporting the results of Buyer activities for a fee or other consideration, or in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. If Buyer needs commercial use rights in respect of the products (including the right to perform fee-for services), please contact Provider at info@ivanobioscience.com. Where Buyer’s use of the product is outside the scope of the Agreement, it is solely Buyer responsibility to acquire additional rights.

5.3. Ownership. Unless expressly state otherwise, Provider exclusively own all Intellectual Property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for Provider, or jointly by Provider and Buyer, in relation to processes, designs and methods utilized in manufacture of a custom product.

5.4. Improvements. Buyer shall advise Provider without delay and in any event, no later than fifteen (15) days following the inception of any Improvement it makes or conceives which relates to the products, and Buyer shall deliver all data and specifications to Provider concerning such Improvement. Buyer undertakes to sign and deliver any required documentation to obtain Intellectual Property protection for any Improvement developed by Buyer and to confirm its assignment to Provider. “Improvements” shall mean all further inventions, ideas, designs, concepts, discoveries, techniques, works, processes, recipes, formulas and modifications; whether or not patentable, copyrightable, or otherwise protectable as intellectual property, conceived, brought to practice or developed by Provider and/or Buyer and related, directly or indirectly, to products.

5.5. No Implied Licenses. No right or license is granted herein by one Party to the other Party with regards to their Intellectual Property, whether express or implied, except those specifically set forth in this Agreement.
5.6. Intellectual Property Infringement. Provider wants to avoid claims of Intellectual Property infringement. If we believe a product we have sold to you may be subject to a claim for intellectual property infringement, you must allow us (at our option) to either (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) tell you to return the product to us and we will refund to you the price you paid. In the case of instruments, we will take off a reasonable amount for the instrument’s use, damage or because it is now out of date or out of use.

6. BUYER’S REPRESENTATIONS AND WARRANTIES

6.1. Buyer represents, warrants and covenants in its name and on its personnel’s behalf : (i) that the products will be used in compliance with the terms and provisions of this Agreement and more particularly with Section 5; (ii) that no attempt to copy, change, disassemble, reverse engineer or otherwise decompose the product will be made; (iii) that all rights, in the Improvements, of its employees and any other individual that may participate in the internal research activities of Buyer have been assigned to Buyer; (iv) that Buyer and its employee have the expertise necessary to handle the products with care and without danger, and hereby undertakes to do in a safe and prudent manner; and (v) that Buyer and its employee undertake to comply with all appropriate law and governmental regulations, in all appropriate jurisdictions, which are applicable to the use of the products, and to obtain any and all permits or other approvals required thereby in connection with the receipt, handing, use, disposal, or storage of the products.

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

7.1. Indemnification. Buyer shall defend, indemnify, and hold harmless Provider and Provider’s parent corporations, their subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders, employees, customers, agents and representatives (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, penalty, fine, cost, or expense, including reasonable legal fees and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) any act or omission of Buyer, (b) the products purchased from Provider and use thereof by Buyer, or (c) Buyer’s negligence, willful misconduct, or breach of the Agreement. In no event shall Buyer enter into any settlement without Provider’s or Indemnitee’s prior written consent.

7.2. Limitation of Liability.
SUBJECT TO APPLICABLE LEGAL LIMITATIONS, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, INDICENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SIMILAR OR ADDITIONAL DAMAGES INCURRED OR SUFFERED INCLUDING LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, LOSS OF EXPECTED SAVINGS OR BUSINESS INTERRUPTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, A PURCHASE ORDER, THE PRODUCTS OR ANY DEFECT RELATING THERETO. ALSO, PROVIDER SHALL NOT BE LIABLE IN ANY WAY WITH RESPECT TO THE USE OF THE PRODUCTS BY THE BUYER. NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR IN ANY PURCHASE ORDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE MAXIMUM AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY PURCHASE ORDER, SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AGGREGATE AMOUNT RECEIVED BY PROVIDER UNDER THIS AGREEMENT OR THE PURCHASE ORDER GIVING RISE TO SUCH CLAIM OR SUCH LIABILITY AS OF THE DATE OF THE EVENTS OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIM OR LIABILITY.

8. INFRINGEMENT

8.1. Infringement of Third Person’s Rights. Should a claim, lawsuit or proceeding (a “Claim”) that the products infringe a third person’s Intellectual Property rights be made against the Buyer, the Provider, or any of their respective affiliates, the Parties agree that they shall give the other prompt written notice detailing as many facts as possible concerning such Claim.

8.2. Prosecution of Infringement Claims. In the event that either Party determines that a third person is infringing upon the products, such Party shall notify the other Party promptly of such infringement while detailing as many facts as possible relating to the infringement. The Parties shall consult on a course of action to stop the infringement.

9. FORCE MAJEURE

9.1. Force Majeure Event. A Party shall be excused from its failure or delay to perform any of its obligations hereunder if such Party is unable and delayed in performing such obligation by reason of a Force Majeure Event. A “Force Majeure Event” means any event or circumstance which is unforeseeable, irresistible and independent of the will of the Party invoking such event or circumstance, including fire, flood, earthquake, elements of nature or acts of God, epidemic or pandemic, including the coronavirus disease (COVID-19) pandemic, acts of war (declared or not), threat of preparation for war, terrorism, riots, civil disorders, rebellions, partial or complete work interruption, compliance with regulations or orders of any governmental authorities, interruption or failure of utility and transportation services and changes in the market conditions, including but not limited to, changes in costs or availability of raw materials, components or services. A Force Majeure Event excludes (a) any event or circumstance which was caused by the negligence or willful act or omission of the Party invoking such event, as well as (b) the financial inability to perform the obligations under this Agreement of the Party invoking such event.

10. GENERAL PROVISIONS

10.1. Assignment.  Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Buyer of any of its obligations hereunder. Provider may at any time assign, transfer, or subcontract any or all its rights or obligations under the Agreement without Buyers prior written consent.

10.2.Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the applicable Purchase Order or to such other address that the receiving Party may designate from time to time. Notices sent in accordance with this paragraph will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail in each case, with confirmation of transmission if sent during the addressee’s normal business hours and on the next business day if sent after the addressee’s normal business hours; and (d) on the fifth (5th) business day after the date mailed by certified or registered mail or by postage prepaid.

10.3. Confidentiality. Buyer agrees to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between Buyer and Provider in relation to the products or services.

10.4. Regulatory Restrictions. In addition to the restrictions set out in this Agreement: (a) Buyer must use the products in accordance with the Specifications; (b) Buyer is solely responsible for making sure that the way Buyer’s use the products complies with applicable laws, regulations and governmental policies; (c) Buyer must obtain all necessary approvals and permissions it may need; and (d) it is solely Buyer’s responsibility to make sure the products are suitable for its particular use.

10.5. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.

10.6. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.

10.7. Export and Import Restrictions.

10.7.1. Products. Buyer acknowledges that each product, including Specification and technical information provided by Provider to Buyer, are subject to international and local government export controls.

10.7.2. Export Controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of products from the United States and their re-export from other countries.

10.7.3. Compliance Requirements. Buyer must comply with government export control authorities, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Products. Buyer must not, directly or indirectly, without first obtaining the required license to do so from the appropriate government agency; export, re-export, distribute or supply any Products to: (a) any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by applicable laws; (b) any person or entity who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. Buyer will, if requested by Provider, provide information on the end user, if any, and end use of any Products Buyer export or plan to export.

10.7.4. Audit Cooperation. Buyer will cooperate fully with Provider in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold Provider harmless from, or in connection with, Buyer and/or Buyer consultants’, agents’, or employees’ violation of this Section 10.7.

10.8. Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the Province of Québec and the laws of Canada applicable therein, without giving effect to any choice or conflict of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

10.9. Choice of Forum. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Québec, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.

10.10. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

10.11. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Custom Services and Products

1. SERVICES AND PROVIDER’S OBLIGATIONS

1.1 Provider shall provide the Services to Customer as described in more detail in the Statement of Work or the Quote and in accordance with the terms and conditions of this Agreement, provided that the details of the method and manner for performance of the Services by Provider shall be under its own control, Customer being interested only in the results thereof. Notwithstanding the foregoing, Provider retains the right to perform the same or similar type of services for third parties during the Term of this Agreement. “Quote” shall mean an offer issued by the Provider to the Customer for the Services and the related Deliverables (if any). “Services” shall mean the professional services to be provided by Provider under this Agreement, as described in more detail in the Statement of Work or the Quote, and Provider’s obligations under this Agreement.

1.2 Provider shall (i) maintain the same Provider contract manager and other key personnel throughout the Term of this Agreement except for changes in such personnel due to the resignation or termination of such personnel or other circumstances outside of Provider ‘s reasonable control; and (ii) before the date on which the Services are to start, obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services.

1.3 If Provider’s performance of its obligations under this Agreement is prevented or delayed by any reasonable act or omission of Customer or its agents, subcontractors, consultants, or employees, Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

2. CUSTOMER’S OBLIGATIONS

2.1 Customer shall (i) cooperate with Provider in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement; (ii) respond promptly to any Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Provider to perform Services in accordance with the requirements of this Agreement; (iii) provide such Customer Materials as Provider may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable law in relation to the Services and , the use of Customer Materials in all cases, unless otherwise stated within this Agreement, before the date on which the Services are to start.

3. CHANGE ORDERS

3.1 If either Party wishes to change the scope or performance of the Services, it shall submit details of the requested change the other Party in writing in accordance with the notice provisions in Section 13.4. Provider shall, within a reasonable time after receiving a Customer-initiated request, or at the same time that Provider initiates such a request, provide a written estimate to Customer of (i) the likely time required to implement the change; (ii) any necessary variations to the Fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; (iv) any other impact the change might have on the performance of this Agreement; and (v) any other information requested by the Customer.

3.2 Promptly after receipt of the written estimate, the Parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither Party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 13.8.

4. TERM AND TERMINATION

4.1 Term. This Agreement shall commence when Provider issues an Acceptance Notice (as defined below) confirming that Provider has accepted the Purchase Order (as defined below) and shall continue thereafter until the completion of the Services under the Statement of Work or the Quote (the “Term”), unless sooner terminated pursuant to this Section 4.

4.2 Termination without Cause. Provider may terminate without cause this Agreement and the Statement of Work, effective upon written notice to Customer.

4.3 Termination for Cause. Either Party may terminate this Agreement and the Statement of Work, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or (ii) becomes insolvent or admits its inability to pay its debts generally as they become due; becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

4.4 Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason:
(a) If terminated by Customer, Provider shall promptly deliver to Customer all Deliverables (whether complete or incomplete) for which Customer has paid, all Customer Materials in its possession, at Customer’s sole cost and expense;
(b) Each Party shall (i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information, (ii) permanently delete all of the other Party’s Confidential Information from its computer systems, and (iii) certify in writing to the other Party that it has complied with the requirements of this clause.

4.5 Survival. The rights and obligations of the Parties set forth in this Section 4.5 and Section 6, Section 7, Section 8, Section 10, Section 10, Section 11 and Section 12, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

5. FEES AND PAYMENT TERMS

5.1 Fees and Payment. In consideration of the provision of the Services by Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the Statement of Work or the Quote (the “Fees”). Payment to Provider of such Fees and the reimbursement of expenses pursuant to this Section 5 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the Statement of Work or the Quote, said Fees will be payable within thirty (30) days of receipt by the Customer of an invoice from Provider but in no event more than thirty (30) days after completion of the Services performed pursuant to the Statement of Work or the Quote. All payments hereunder shall be in Canadian dollars and made by check or wire transfer.

5.2 Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Customer’s account, and Customer hereby agrees to pay such taxes; provided that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

5.3 Late Payment. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month (18% per annum) or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Provider for all costs incurred in collecting any late payments, including, without limitation, legal fees. In addition to all other remedies available under this Agreement or at law (which Provider does not waive by the exercise of any rights hereunder), Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts/fees when due hereunder and such failure continues for ten (10) days following written notice thereof.

5.4 Reimbursement. In the event that the Customer’s Material cannot be expressed and consequently prevents the performance of the Services, Provider undertakes to reimburse Customer for the Fees already paid by the Customer, except for those concerning the Synthesis of gene sequences.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Use Limitations. As between the Parties, Provider exclusively own all Intellectual Property rights relating to the Deliverables. Unless Provider expressly state otherwise, the sale of Deliverables to Customer only grants a limited, nontransferable right under Provider’s Intellectual Property to use the quantity of Deliverables purchased from Provider for the Customer internal research purposes only. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell the Deliverables or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by Provider in writing, Customer will not modify, change, remove, cover or otherwise obscure any of Provider brands, trade or service marks on the Deliverables. Nothing in the Agreement limits Provider ability to enforce Provider’s Intellectual Property rights with respect to the Deliverables, Specifications and Services provided hereunder.

6.2 Commercial Applications; Additional Rights. Unless expressly state otherwise, Provider give no rights to use the Deliverables in any commercial application, including without limitations manufacturing, quality control, commercial services such as reporting the results of Customer activities for a fee or other consideration, or in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. If Customer needs commercial use rights in respect of the products (including the right to perform fee-for services), Customer shall contact Provider in writing. Where Customer’s use of the Deliverables is outside the scope of the Agreement, it is solely Customer responsibility to acquire additional rights.

6.3 Ownership. Unless expressly state otherwise, Provider exclusively owns all Intellectual Property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for Provider, or jointly by Provider and Customer, in relation to processes, designs and methods utilized in manufacture of the Deliverables. No right or license is granted herein by Provider to Customer with regards to its Intellectual Property, whether express or implied, except those specifically set forth in this Agreement.

6.4 Improvements. Customer shall advise Provider without delay and in any event, no later than fifteen (15) days following the inception of any Improvement it makes or conceives which relates to the Deliverables, and Customer shall deliver all data and specifications to Provider concerning such Improvement. Customer undertakes to sign and deliver any required documentation to obtain Intellectual Property protection for any Improvement developed by Customer and to confirm its assignment to Provider. “Improvements” shall mean all further inventions, ideas, designs, concepts, discoveries, techniques, works, processes, recipes, formulas and modifications; whether or not patentable, copyrightable, or otherwise protectable as intellectual property, conceived, brought to practice or developed by Provider and/or Customer and related, directly or indirectly, to the Deliverables.

6.5 Intellectual Property Infringement. Provider wants to avoid claims of Intellectual Property infringement. If Provider believes the Deliverables may be subject to a claim for intellectual property infringement, Customer must allow Provider (at Provider’s option) to either (a) secure for Customer the right to continue using the Deliverables; (b) substitute the Deliverables with another suitable product with similar functionality; or (c) tell Customer to return the Deliverables to Provider while Provider will refund Customer for the Fees paid under this Agreement.

6.6 Customer Materials. Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Provider shall have no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer.

7. CONFIDENTIAL INFORMATION

7.1 Confidential Information. The Receiving Party agrees (i) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party, with written consent by the Disclosing Party prior to each individual consultant disclosure, to its officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 7 (ii) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement; and (iii) to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.

7.2 Mandatory disclosure. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide (i) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (ii) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by law, court order or any other governmental or administrative authority to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual representations. Each Party represents and warrants to the other Party that (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and (iv) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8.2 Provider’s representations. Provider represents and warrants to Customer that (i) it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and (ii) it is in compliance with, and shall perform the Services in compliance with, all applicable laws.

8.3 Customer’s representations. Customer further represents, warrants and covenants in its name and on its personnel’s behalf : (i) that the Customer’s Material is free of all links and in no way infringes the rights of any third party, including intellectual property rights; (ii) that the Deliverables will be used in compliance with the terms and provisions of this Agreement and more particularly with Section 6; (iii) that all rights, in the Improvements, of its employees and any other individual that may participate in the internal research activities of Customer have been assigned to Customer; (iv) that no attempt to copy, change, disassemble, reverse engineer or otherwise decompose the Deliverables will be made; (v) that Customer and its employee have the expertise necessary to handle the Deliverables with care and without danger, and hereby undertakes to do in a safe and prudent manner; and (vi) that Customer and its employee undertake to comply with all appropriate law and governmental regulations, in all appropriate jurisdictions, which are applicable to the use of the Deliverables, and to obtain any and all permits or other approvals required thereby in connection with the receipt, handing, use, disposal, or storage of the products.

8.4 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8 (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. INDEMNIFICATION

9.1 Customer shall defend, indemnify, and hold harmless Provider and Provider’s parent corporations, their subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders, employees, customers, agents and representatives (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, penalty, fine, cost, or expense, including reasonable legal fees and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) any representations, warranties and covenants provided under this Agreement, including those set forth in Section 8; (b) any act or omission of Customer, (c) the Deliverables purchased from Provider and use thereof by Customer, or (d) Customer’s negligence, willful misconduct, or breach of the Agreement. In no event shall Customer enter into any settlement without Provider’s or Indemnitee’s prior written consent.

10. LIMITATION OF LIABILITY

10.1 IN NO EVENT, OTHER THAN A BREACH OF SECTION 7 OF THIS AGREEMENT OR ANY NON-DISCLOSURE AGREEMENT ENTERED INTO BY THE PARTIES, SHALL PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 EXCEPT FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS (SECTION 7) OR ANY NON-DISCLOSURE AGREEMENT ENTERED INTO BY THE PARTIES, IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11. DELIVERY AND ACCEPTANCE

11.1 Delivery, Transfer of Risks and Property. Provider shall make reasonable efforts to deliver the Deliverables on the Delivery Date as indicated on the Quote. All Deliverables shall be provided to the Customer EXW at the location (the “Delivery Location”) and the date (the “Delivery Date”) specified in the applicable Statement of Work or Quote and in accordance with the terms and conditions of this Agreement. Provider will use commercially reasonable efforts to notify Customer of any anticipated delays. “EXW” shall have the meaning set out in the 2020 Incoterms published by the International Chamber of Commerce as modified from time to time. “Quote” shall mean an offer issued by the Provider to the Customer for the Services and the related Deliverables (if any).

11.2 Disclosure of the Deliverables. Provider shall provide Customer with all the Specification, documentation, information and updates intended for the use of the Deliverables by Customer, and shall make available to Customer by telephone, email or facsimile, where reasonably warranted, the service of competent and knowledgeable technical personnel to confer with competent Customer technical personnel in order to facilitate the exchange of information. “Specifications” shall mean the manufacturing, materials, packaging, labelling, testing, performance, technical and other similar requirements for the products.

11.3 Failure to Accept Delivery. If, for any reason, Customer fails to accept delivery of any of the Deliverables on the Delivery Date or otherwise notified to Customer by Provider: (i) risk of loss to the Deliverables shall pass to Customer; (ii) the Deliverables shall be deemed to have been delivered; and (iii) Provider, at its option, may store the Deliverables until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). After thirty (30) days, Provider shall be free to dispose of the Deliverables in its sole discretion and Customer shall pay any amounts invoiced with respect to such Deliverables.

12. FORCE MAJEURE

12.1 Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrections, pandemic, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or prolonged telecommunication breakdown or power outage.

13. MISCELLANEOUS

13.1 Further Assurances. Each Party shall, upon the reasonable request, and at the sole cost and expense, of the other Party, promptly execute such documents and take such further actions as may be necessary to give full effect to the terms of this Agreement.

13.2 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for nor bind the other Party in any manner whatsoever.

13.3 No Public Statements. Neither Party may issue nor release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of sources, association, or sponsorship, in each case, without the prior written consent of the other Party.

13.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (other than routine communications having no legal effect) must be in writing and sent to the respective Party at the addresses indicated in the preamble above (or at such other address for a Party as may be specified in a notice given in accordance with this Section). Notices sent in accordance with this Section 13.4 will be deemed effective: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the fifth (5th) business day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

13.5 Entire Agreement. This Agreement, including and together with any related Statement of Works or quotes, exhibits, schedules, attachments and appendices, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and the terms and conditions of any Statement of Work, quotes or any other documents, the terms and conditions of this Agreement shall supersede and control or other document.

13.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent, which will not be unreasonably withheld. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.6 is void. Provider may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement with the Customer’s consent, which will not be unreasonably withheld. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

13.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

13.8 Amendment; Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.9 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.10 Governing Law; Submission to Jurisdiction. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the Province of Quebec and the laws of Canada which apply therein, without regard to the conflict of laws provisions. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

13.11 Equitable Relief. Each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court, and the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. These remedies are not exclusive but are in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

13.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission (to which assigned PDF copy is attached) will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

13.13 Export and Import Restrictions. Customer acknowledges that each Deliverables, including Specification and technical information provided by Provider to Customer, are subject to international and local government import and/or export controls. The import and/or export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”) or the Canada’s Export and Import Permits Act, which may restrict or require licenses for the export or import of products from Canada or the United States and their re-export from other countries. Customer must comply with government export control authorities, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Deliverables. Customer must not, directly or indirectly, without first obtaining the required license to do so from the appropriate government agency; import, export, re-export, distribute or supply any Deliverables to: (a) any restricted or embargoed country or to a Person whose privilege to participate in exports has been denied or restricted by applicable laws; (b) any Person who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. Customer will, if requested by Provider, provide information on the end user, if any, and end use of any Deliverables Customer import, export or plan to import or export. Customer will cooperate fully with Provider in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold Provider harmless from, or in connection with, Customer and/or Customer consultants’, agents’, or employees’ violation of this Section 13.13.

13.14 English Language. Each Party acknowledges that it is their express wish that this Agreement and its related documents be drawn in English and declares themself satisfied with it. Chacune des parties reconnaît qu’il est de sa volonté expresse que cette entente et ses documents connexes soient rédigés en anglais et s’en déclare satisfait.