Terms and Conditions:
Skyphos (the “company”) is in the business of designing, developing, engineering, manufacturing and selling Microfluidic chips (the “goods”) to supply to individuals and businesses (the “customer”).
WHEREAS, Customer wishes to purchase certain the Goods from Company; and,
WHEREAS, Company desires to manufacture and sell the Goods to Customer;
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties agree as follows:
1. Overview: This Agreement states the general terms and conditions by which Company will deliver and Customer will receive any or all of the Goods provided by Company. The specific Goods to be provided and the procedure for obtaining such Goods shall be detailed in the associated Purchase Order contained in Exhibit A hereto, or as subsequently agreed to by the Parties. This Agreement is intended to cover any and all Goods ordered by Customer and provided by Company. Customer may use the Goods only for authorized and lawful purposes.
2. Right to Manufacture and Sell Competitive Goods: This Agreement does not limit Company’s right to manufacture or sell, or preclude Company from manufacturing and selling, to any Person, or entering into any agreement with any other Person related to the manufacturing or sale of, the Goods or other Goods that are similar to or competitive with the Goods.
3. Purchase and Sale of Goods: Subject to the terms and conditions of this Agreement, Customer shall purchase from Company, and Company shall manufacture and sell to Customer, the Goods ordered by Customer. Customer shall order such Goods by submitting to Company a Purchase Order. By submitting a Purchase Order, Customer agrees to take and pay for, and, by accepting the Purchase Order, Company agrees to manufacture and sell, the Goods during the term described on the Purchase Order. Company has the right to limit the manner in which any of its Goods are used.
4. Acceptance, Rejection and Cancellation of Purchase Orders: Company accepts a Purchase Order by confirming the order in writing or by delivering the applicable Goods to Customer, whichever occurs first. Company may reject a Purchase Order or cancel a previously accepted Purchase Order, which it may do without liability or penalty, and without constituting a waiver of any of Company’s rights or remedies under this Agreement or any Purchase Order.
5. Development and Production of Goods: The services provided herein may require Company to develop, customize, augment or otherwise work with, business processes, business relationships and strategies, know how, trade secrets, copyrighted materials, patents, and other intellectual property, related to Company’s business, intellectual property interests which are owned solely and exclusively by Company (collectively, the “Protected Intellectual Property”). Customer acknowledges that Company is the sole owner of the Protected Intellectual Property, agrees not to contest or challenge Company’s ownership or rights in same, covenants not to make any use whatever of the Protected Intellectual Property that is not expressly authorized by Company, and further agrees not to take any action that would reverse engineer, convert, infringe, misappropriate, dilute, constitute unfair competition with respect to or otherwise violate, damage, or impair the Protected Intellectual Property.
6. Testing and Acceptance: Company will exercise commercially reasonable efforts to test the Goods requiring testing and to make all necessary corrections prior to providing the Goods to Customer. Customer, within three (3) business days of receipt of each Good, shall notify Company, in writing, of any failure of such good to comply with the specifications set forth in the Purchase Order, or of any other objections, corrections, changes or amendments Customer wishes made to such Good. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Customer, the Good shall be deemed accepted.
7. Term: Subject to the provisions of Sections 14 and 15, the initial term of this Agreement will commence on the Effective Date for a period of one (1) year. Thereafter, the services provided hereunder automatically renew for successive one (1) year terms unless terminated by either Party upon no less than thirty (30) days written notice prior to the end of the renewal term, or unless otherwise specified in the Purchase Order. This Agreement shall continue until so terminated by written notice as provided in Section 30. Upon termination of this Agreement, all rights of Customer to order new services cease and Company has no further obligations to furnish new services to Customer. In the event of any inconsistency between the terms contained in this Agreement and any specific provisions of the Purchase Order, the terms of the Purchase Order shall prevail. References herein to exhibits mean exhibits to this Agreement unless the context indicates otherwise.
8. Fees and Payment Terms: In consideration of the services to be performed by Company, Customer shall pay to Company fees in the amounts and according to the prices and terms set forth in the Purchase Order (the “Fees”). Upon completing design, design analysis, production and testing of the Goods needed to provide services ordered by Customer, Company will notify Customer that the services are available for shipment to Customer’s. use. These services are subject to, but are not limited to, the Fees as set forth in Purchase Order. Company reserves the right to change the Fees for such services at any time, after the initial term hereof upon twenty-five (25) days prior written notice to Customer. The Fees do not include any governmental taxes or tax-related charges, fees, surcharges or other amounts assessed by any government, which may be incurred in connection with services to be provided hereunder, all of which shall be paid by Customer. Any Engineering Services charges or other non-refundable Non-Recurring Charge (“NRC”) to be billed one time will appear on the first monthly invoice. Company reserves the right to recover any additional charges accrued during performance.
ANY PAYMENT NOT RECEIVED WITHIN THIRTY (30) DAYS OF THE INVOICE DATE WILL ACCRUE A TWENTY-FIVE DOLLAR ($25.00) OR 1.5% OF PAST DUE INVOICE AMOUNT, WHICHEVER IS GREAT, LATE FEE PER MONTH.
ANY CHECK OR ACH THAT IS DISHONORED OR RETURNED FOR ANY REASON WILL BE ELECTRONICALLY DEBITED FROM CUSTOMER’S ACCOUNT FOR THE AMOUNT OF THE CHECK PLUS A PROCESSING FEE OF FIFTY DOLLARS ($50.00).
9. Early Termination Charges: If (a) Customer terminates this Agreement or any Purchase Order hereunder for reasons other than Cause; or (b) Company terminates this Agreement or any Purchase Order hereunder pursuant to Sections 14 and 15, then Customer will pay, within thirty (30) days after such termination: (i) all accrued but unpaid charges incurred through the date of such termination, plus (ii) an amount equal to fifty percent (50%) of the Fees for each initial term (and any pro rata portion thereof for any partial initial term) remaining in the unexpired portion of the initial term on the date of such termination, plus (iii) a pro rata portion of any and all credits received by Customer. If Customer desires to cancel a signed Purchase Order prior to receipt of the Goods the following conditions apply, (I) when a service that requires special design work is canceled after the design work has begun, Company may collect charges equal to the cost incurred for the associated design work time and materials to date, and (II) if cancellation is requested after completion of an installation, it will be treated as an early termination of service and is pursuant to the terms and conditions of Section 7.
10. Limitation of Liability: The total liability of Company to Customer in connection with this Agreement, for any and all causes of actions and claims, including, without limitation, breach of Agreement, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the lesser of: (a) direct damages proven by Customer; or (b) the amount paid by Customer to Company under this Agreement for the one (1) month period prior to accrual of the most recent cause of action. In no event shall Company be liable for special, punitive, consequential or incidental damages, including without limitation, lost revenue, profits or other benefit whether by tort, agreement, or otherwise.
11. Force Majeure: Neither Party is liable for any failure of performance if such failure is due to any cause or causes beyond such Party’s reasonable control, including without limitation, acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, labor difficulties and supplier failures. Customer’s invocation of this clause shall not relieve Customer of its obligation to pay for any services actually received. In the event such failure continues for sixty (60) days, the other Party may terminate the affected portion of the services, for Cause.
12. Assumption of Risk: Customer recognizes that use of Company’s services, products and equipment shall be at its own risk, and therefore, expressly assumes any risk arising from the exercise of any rights, privileges or obligations identified herein.
13. Indemnity: Subject to the provisions of Section 10, each Party agrees to indemnify, defend and hold harmless the other and its members, and the commissioners, officers, directors, employees, agents and other representatives of Company and its members. Each Party must indemnify, defend and hold harmless the other from all losses or damages arising from a breach of this Agreement, violation of any third party intellectual property right, all claims of any kind by end users, or any act or omission in connection with any service provided hereunder.
14. Termination by Company: Company may terminate this Agreement or any Purchase Order hereunder, or suspend services, with prior notice, upon (a) failure of Customer to pay any amounts as provided herein within thirty (30) days of invoice; or (b) Customer’s breach of any provision of this Agreement or any law, rule or regulation governing the services; or (c) if Customer provides false information to Company regarding the Customer’s identity, creditworthiness, or its planned use of the services; or (d) if Company deems necessary to take any reasonable and lawful action to protect the property and rights of Company and existing and potential Customers of Company services.
15. Termination for Cause: Either Party may terminate this Agreement for Cause. “Cause” shall mean a breach by the other Party of any material provision of this Agreement, provided that notice of the breach has been given to the breaching Party, and the breach has not been cured within thirty (30) days after delivery of such notice.
16. Assignment: Customer shall not assign, pledge, transfer or otherwise convey all or any part of the rights and privileges granted by this Agreement in any manner without prior written consent of Company, which consent it will not unreasonably withhold. Any transfer of this Agreement by merger, consolidation or liquidation of Customer, or any change in the ownership of or power to vote the majority of its outstanding voting stock (whether effected in one or more transactions or events occurring over any period of time) shall constitute an assignment for purposes of this Section. Company may assign, pledge, transfer or otherwise convey all or any part of the rights and privileges granted by this Agreement in any manner without prior written consent of the Customer.
17. Taxes: Each party shall be responsible for its own federal, state and local taxes, assessments, fees, surcharges and other financial impositions. Notwithstanding the foregoing, Customer agrees that if there is any tax payable by it, but which is to be collected by Company which Company does not collect for any reason, upon assessment thereof by the applicable taxing agency, and demand by Company Customer shall immediately remit the same to Company or the agency, as directed by Company even if such assessment arises after the termination of this Agreement.
18. Representations and Warranties: Each Party represents and warrants that they and their representative signing this Agreement has full power and authority to execute, deliver, and perform its obligations under this Agreement. Company represents and warrants to Customer that any services provided hereunder will be performed in a manner consistent with that of other reputable companies of the same or similar services in the same locality.
19. Limited Product Warranty: Subject to the provisions of Section 20 and Section 21 of this Agreement, Company warrants to Customer (the “Product Warranty”) that: (a) for a period of sixty (60) days from the date of shipment (the “Warranty Period”), the Goods will materially conform to the specifications set forth in the Purchase Order; and (b) Customer will receive good and valid title to all Goods, free and clear of all encumbrances and liens of any kind.
20. Product Warranty Limitations: The Product Warranty does not apply to any Good that: (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Company; (b) has been reconstructed, repaired or altered by Persons other than Company or its authorized representative; or (c) has been used with any third-party products, hardware or product that has not been previously approved in writing by Company.
21. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES; NON-RELIANCE: EXCEPT FOR THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 19, (A) NEITHER COMPANY NOR ANY PERSON ON COMPANY’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OR PERFORMANCE OF GOODS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY COMPANY, OR ANY OTHER PERSON ON COMPANY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 19 OF THIS AGREEMENT.
22. Governing Law: This Agreement is governed by and subject to the laws of the Commonwealth of Virginia, excluding its principles of conflicts of law.
23. Collection & Litigation: Customer will be responsible for any and all collection fees. If either Party commences litigation under this Agreement, the prevailing Party is entitled to reimbursement of attorneys’ fees from the other Party.
24. Remedies not Exclusive: The remedies provided in this Agreement shall be in addition to all other remedies to which Company and Customer may be entitled at law or in equity, including without limitation the right to recover unpaid amounts with interest at the applicable statutory judgment rate, but accruing from the date initially due.
25. Jurisdiction; Venue: The Parties consent to the personal jurisdiction of the courts of the Commonwealth of Virginia and federal courts located in Virginia so that any litigation concerning or arising out of this Agreement shall be brought in Virginia. The Parties agree not to claim that Virginia is an inconvenient place for trial. The venue of any such legal action shall be in Montgomery County, Virginia.
26. Entire Agreement: This Agreement and any addendums, attachments, Purchase Orders, and other documents incorporated herein constitutes the entire Agreement between the Parties with respect to its subject matter and supersedes all other representations, understandings or Agreements that are not expressed herein, whether oral or written. Except as otherwise set forth herein, no amendment to this Agreement shall be valid unless in writing and signed by both Parties.
27. Waivers: No waiver of any provision or breach of this Agreement shall be effective unless such waiver is in writing and signed by the waiving Party and any such waiver shall not be deemed a waiver of any other provision of this Agreement or any other breach of this Agreement.
28. Use of Name and Trademarks: Neither Party shall use any name, logo or service mark of the other Party in marketing services to others without the express written consent of the other Party.
29. Confidentiality: Customer shall treat all information made available or disclosed to, or developed or obtained by, Customer as the result of or related to this Agreement (“Confidential Information”) as confidential, and shall not disclose or use Confidential Information for the benefit of any person other than Company; provided however, that Customer shall have no obligation with respect to that portion of Confidential Information which is disclosed by Company to others without any restriction on use or disclosure, or which must be disclosed to others under law. If Customer received a request for Confidential Information from a third party, Customer shall promptly notify Company in writing of such request, and if Customer in good faith believes it is obligated to disclose the requested Confidential Information Company shall be given the opportunity to seek judicial or other protection of such Confidential Information, with the cooperation of Customer. The Parties incorporate the terms of the existing Nondisclosure Agreement between them.
30. Notices: All notices, requests, demands or other communications which are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given (i) on the date of delivery if personally delivered by hand, (ii) upon the third day after such notice is (a) deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested, or (b) sent by a nationally recognized overnight express courier
31. Agreement Addendums: Company reserves the right to amend the terms of this Agreement at any time. Customer shall be notified of such amendments within thirty (30) days.
32. Privacy Notice: Effective upon signature date of Agreement. (a) This notice applies to all information collected and/or submitted to Company including, but not limited to name, address, email address, phone number, credit card/debit card information, social security number, etc. (b) Company agrees not to share this information with outside Parties except to the extent necessary to comply with the Agreement. (c) Company will never use or share the personal or identifiable information supplied in ways unrelated to the ones described above without also providing Customer an opportunity to opt out or otherwise prohibit such unrelated uses.
33. How to Contact Skyphos Technologies, LLC: If Customer has any questions or concerns about any of the information in the above Agreement please contact the Company at 540-759-2447. Mailing address is 575 Merrimac Rd. Blacksburg VA 24060.