1. Contract Formation
Any quotation, whether or not responsive to a request from the Buyer, constitutes the offer of iuvo BioScience Operations, LLC (iuvo) to the Buyer, and becomes a binding contract under the terms and conditions set forth herein when it is accepted by the Buyer. However, any such acceptance shall be valid only if made within ninety (90) days of the date of this instrument or such other time period specified. iuvo reserves the right to revise this quotation at any time due to changes beyond iuvo’s control, such as, without limitation, cost of materials, engineering, or manufacturing process changes. iuvo will provide the Buyer with advance notice of any price change when reasonably practicable. If this instrument is an acknowledgment, it constitutes iuvo’s acceptance of the Buyer’s order, subject, however, to the terms and conditions set forth herein. Buyer must issue an order for each test which iuvo is to perform hereunder. Buyer shall include the iuvo quote number in Buyer’s order. If Buyer desires to establish a standing order to facilitate multiple tests/order processing, please contact iuvo to establish. These terms and conditions shall govern all orders/contracts for laboratory tests, laboratory services, sterilization services, and other products or services provided by iuvo. These terms and conditions shall be automatically incorporated by reference into each quote, order, Contract Sterilization Agreement, and any other agreement entered into by iuvo, and shall supersede any other agreement, writing, or understanding whether made before or after the date of this instrument. Thus, iuvo’s contractual obligations are expressly limited to the terms contained herein and any other contract into which these terms and conditions are incorporated. The inclusion of any different or additional terms in any other instrument is objected to, and performance by iuvo shall occur with the express understanding that only the terms and conditions recited herein shall control.
2. Terms of Payment
All payments are to be made in U.S. funds, and without expense to iuvo. The Buyer may make payment by check, wire transfer, or MasterCard/Visa. For questions regarding credit applications or routing information for wire transfers, please contact the iuvo accounting department at 585-533-1672.
Payment Terms: Net 30 days after date of invoice. Credit card payment will be assessed a 2.5% surcharge.
Buyer shall make payment to iuvo upon invoice receipt. If iuvo does not receive payment within 30 days of the date of the invoice, interest may be accumulated in the amount of 1.5% per month, compounded monthly, on the outstanding balance, the interest rate shall not exceed the maximum interest rate permitted by law.
Acceptance of the delinquency charge by iuvo shall not be deemed a waiver of any rights that iuvo may have by reason of such non-payment. However, notwithstanding the foregoing, iuvo retains the option to refuse or to revoke credit, and to require immediate payment of all outstanding balances and payment on delivery for all future deliveries.
Buyer agrees to pay any expenses incurred in collecting any unpaid balance of the purchase price, or in recovering possession of goods including reasonable attorney’s fees.
If iuvo extends credit to the Buyer, then for the purpose of securing payment and performance of all Buyer’s obligations hereunder, iuvo shall retain a security interest in all of the goods being sold pursuant to this agreement. At iuvo’s request, Buyer shall execute and join in executing all financing statements and other instruments, in form satisfactory to iuvo, which iuvo deems necessary or desirable to perfect its security interest in the goods being sold pursuant to this agreement.
A prepayment of 50% of the quoted testing price is required on all orders in excess of $5,000 upon receipt of a signed quote and/or purchase order. For international customers, a prepayment of 50% of quoted charges is required upon receipt of signed quote and/or purchase order, regardless of quoted amount. iuvo invoices longer term studies on a monthly basis as incurred.
3. Change Orders
Project Fees are set based on the assumptions set forth in each proposal and are subject to change if those assumptions change. If, during the performance of the Services, the scope of the Services deviates from the assumptions in the proposal, iuvo shall document changes in scope, timelines, and Project Fees in a change order to the Project proposal for review and acceptance by Buyer. Upon mutual agreement by iuvo and Buyer to a Change Order, the applicable proposal including fees, expenses, and timelines, as applicable, will be deemed amended to incorporate such changes in accordance with the Change Order. If Buyer fails to respond promptly and execute to seek to negotiate the Change Order, iuvo may cease providing the Services until the matters set forth in the Change Order have been resolved to iuvo and Buyer’s satisfaction.
4. Lab Operation Fees / Lab Scheduling Fees
iuvo reserves the right to charge additional storage and warehousing fees if a sample from Buyer is received more than 30 days prior to agreed upon start date of services, or prior to Purchase Order being signed and all other required documents for Services are received from Buyer.
Upon completion of Services, iuvo will request Buyer’s plan for any remaining samples. iuvo offers three options for disposition of samples once the Services have been completed. If a product remains within the company’s laboratory for longer than fifteen (15) business days, iuvo reserves the right to charge storage and warehousing costs. The specific rates for storage and warehousing will be communicated to the Buyer in writing.
Alternatively, if the Buyer prefers to have the product disposed of, iuvo will charge disposal costs. The specific rates for disposal will be communicated to the Buyer in writing and will be dependent on the volume of the remaining samples.
If the Buyer chooses to have the product returned, iuvo will provide this service as an additional billable service.
iuvo and the Buyer may agree on additional services for the storage and warehousing of documents, tissues, slides, and other study materials post completion of services.
5. Delivery and Title
For orders with delivery inside the United States, FOB iuvo shipping point shall apply as provided for in the Uniform Commercial Code. Risk of loss and title shall pass to Buyer at the FOB point.
For orders with delivery outside the United States, iuvo and Buyer agree to apply INCOTERMS 2000. Delivery shall be at FCA iuvo shipping point, unless otherwise agreed by iuvo and stated in the order. Risk of loss shall pass to the Buyer as provided for by INCOTERMS 2000. Title shall pass to the Buyer with risk of loss.
Under no circumstances shall iuvo have any liability whatsoever for delays, loss of use, damage during shipping, insurance costs, or for any indirect or consequential damages arising from any delay or loss of use.
iuvo shall not be responsible for the failure to fulfil any obligation arising hereunder due to events beyond its control. These events shall include, but are not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of public enemy, sabotage, strikes, labor disputes, labor shortages, work stoppages, transportation embargoes or delays, failure or shortage of materials or machinery used by Iuvo in the manufacture of the goods supplied hereunder, acts of God, failure of suppliers or subcontractors to satisfactorily meet scheduled deliveries, and acts or regulations or priorities of the Federal, State or local government or branches or agents thereof, government contracts or shipments to purchasers to fulfill contracts.
Lead times and order schedule shall be in accordance with the quotation.
The Buyer shall defend, indemnify and hold harmless iuvo and its affiliates and its officers, directors, shareholders, members, employees, agents and representatives of any of them, from and against any claim, demand, suit, action, controversy, verdict, liability or cost relating to and arising out of the sale or use of Buyer’s products and/or services, except to the extent that such claim, demand, suit, action, controversy, verdict, liability or cost is the direct result of gross negligence or willful misconduct by iuvo.
7. iuvo Standard Warranty
STERILIZATION AND LABORATORY TESTING SERVICES: iuvo warrants that all sterilization and/or testing services (“Services”) will be performed with due care, skill, and diligence and in accordance with standards generally applicable in the industry and shall comply with applicable law and all mutually agreed specifications set forth in the order. iuvo warrants, for a period of ninety (90) days from the date of completion of Services under the order, that its Services performed hereunder will be free from defects in materials and workmanship and shall conform to the specifications set forth in the order. Unless specified in the final written report, the testing results are not indicative or representative of the qualities of any samples from the same or other lots on which testing was not performed. The Buyer understands and agrees that the testing services to be provided by iuvo may result in damage to the samples being tested and the Buyer assumes all risk associated with damage to such samples.
BIOLOGICAL AND CHEMICAL INDICATORS (“GOODS”): THE GOODS ARE SOLD “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In the event of a defect in materials or workmanship in iuvo’s services provided hereunder, iuvo’s sole liability, and Buyer’s sole remedy, under this Warranty shall be limited to the refund of the Buyer’s purchase price for such services performed by iuvo.
THE WARRANTIES CONTAIN HEREIN ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS AND LIABILITIES.
INVESTIGATIONS: For laboratory investigations that are not attributable to iuvo laboratory error, iuvo reserves the right to charge for investigations requested by the Sponsor or for copies of investigation reports requested by the Sponsor.
8. LIMITATION OF LIABILITY
STERILIZATION AND LABORATORY TESTING SERVICES: To the fullest extent permitted by law, iuvo shall not be liable for any direct, indirect, consequential, incidental, punitive or special damages (including without limitation, lost profits) resulting from or arising out of the sterilization and/or testing services provided by iuvo hereunder, whether based in tort, contract or otherwise, and regardless of whether iuvo had advance notice of the possibility of such damages. Notwithstanding the foregoing, iuvo liability in all cases shall be limited to the price quoted for the sterilization exposure and/or laboratory testing.
BIOLOGICAL AND CHEMICAL INDICATORS (“GOODS”): To the fullest extent permitted by law, iuvo shall not be liable for any direct, indirect, consequential, incidental, punitive, or special damages, including without limitation lost profits, resulting from or arising out of the use of the Goods, whether based in tort, contract or otherwise and regardless of whether iuvo has advance notice of the possibility of such damages. Notwithstanding the foregoing, in no event shall iuvo’s liability exceed the price of the Goods sold.
9. Data Protection
To the extent that any of the services provided involve the exchange of Personal Information, each party acknowledges and expressly agrees that each party is responsible for ensuring that Personal Information is collected and processed in a manner compliant with all applicable data protection laws and that is the responsibility of each party to notify the other party in advance of any transfer of Personal Information that is subject to any certain data protection regulations. Each party acknowledges that, to the extent required under any applicable data protection laws, the parties shall enter into a Data Processing Agreement that will govern the processing and transfer of any Personal Information.
Using the same standards iuvo uses to protect iuvo’s own information, iuvo will keep confidential: (i) the written specifications, instructions and procedures Buyer gives iuvo; (ii) the data and other information iuvo produces for Buyer; and (iii) any other information that Buyer provides iuvo, iuvo will only use this information, and disclose it to iuvo’s employees and iuvo contractors as necessary for iuvo to perform Services under this contract. Buyer will do the same for iuvo.
These restrictions will not apply to information that becomes public knowledge through no fault of iuvo or information that iuvo already has or obtains outside of this contract without the obligation of confidentiality even though it is of the same or similar content. The restrictions will end three years after this contract ends.
11. Project Fee Increases
If testing activities are not initiated within 120 days of receipt of a signed quote and/or purchase order, iuvo reserves the right to update the pricing to reflect the then current pricing and charges associated with the testing or services.
Project Fees are subject to change and may be adjusted by iuvo on a scheduled basis. In cases where project duration exceeds twelve (12) months, iuvo reserves the right to increase the applicable fees, any such adjustments will be provided with a minimum of 30 days’ advance written notice.
In situations requiring an increase in costs, such as outside service-provider price increases, the Parties shall negotiate in good faith to agree on a mutually acceptable change to the Purchase Price such that increases are fully covered by the Buyer.
12. Cancellation of Contract
Cancellation notice must be given to iuvo in writing and sent to firstname.lastname@example.org.
After receiving notice of the cancellation, iuvo shall cancel the study in compliance with reasonable and lawful directions received by the Buyer. Upon cancellation, iuvo shall perform and be reimbursed for such additional work that is necessary and required to close out the project. Buyer shall pay iuvo within thirty (30) days following receipt by the Buyer of iuvo’s final detailed invoice.
The cancellation fee will include: Costs already incurred associated with protocol, animal procurement, per diems, and quarantine, materials and reagents, other costs as incurred associated with the project, plus fee below for lab time block reservation.
- $15,000 or 10%, whichever is lower as cancellation fee for 0-14 days’ notice given prior to the scheduled date.
- $5,000 or 5%, whichever is lower as cancellation fee for 15-30 days’ notice given prior to the scheduled date.
13. Delay in Commencement
If the study is delayed from the scheduled start date, a delay fee may be assessed based on the amount of notice given prior to the start date as follows (percent of Total Study Price):
- 10% delay fee for 1-14 days’ notice given prior to study start date.
- 5% delay fee for 15-30 days’ notice given prior to study start date.
If applicable, costs already incurred associated with protocol, animal procurement, per diems, and quarantine, materials and reagents, other costs as incurred associated with the project, plus fee below for lab time block reservation.
14. Intellectual Property
Unless otherwise agreed to in writing in the order by both iuvo and Buyer, all tools, dies, fixtures, jigs, set-ups, or other tooling used in connection with this quotation/order shall be retained and owned by iuvo.
Buyer may not, without iuvo’s prior written consent, assign or transfer any of its rights or obligations under the Agreement or any Order, to any other person. iuvo may delegate its obligations to its affiliates, agents, suppliers, and contractors, and iuvo may disclose to any such persons any information required by them to perform the duties so delegated to them, but such delegation shall not relieve iuvo of its obligations under the Agreement.
A waiver by either party of any breach of any of these provisions, or its failure to exercise any right, shall not be construed as a waiver of any other breach, or a waiver to exercise any other right.
17. Applicable Law
In the event of a dispute regarding any of the terms or conditions contained herein, the parties agree that the laws of New York State, excluding its choice of law rules, will control.
During the term of the Project Agreement and for the subsequent twelve (12) months after the final billing of the project, the Buyer shall not directly offer employment to, nor induce, solicit or entice an iuvo employee, consultant or director who has worked directly on this project or other services associated with this project agreement.
This proposal or Project Agreement will not be construed as exclusive and shall not limit the Buyer from engaging the services of any third party, which services are equal to or similar to the services rendered by iuvo. Similarly, nothing in the proposal or Project Agreement shall limit iuvo from providing services to any third party, including services equal or similar to the services rendered hereunder to the Buyer.
20. Dispute Resolution
The parties shall attempt to resolve through negotiations any claim, controversy, or dispute. If the negotiations are not successful, upon written demand of either party, the claim, controversy, or dispute will be submitted to arbitration. Such arbitration shall happen in the state of New York, will be conducted in English and will proceed in accordance with the rules of the American Arbitration Association. A record or transcript of the proceedings will be maintained. Any award will be made in writing. The determination of a majority of the panel of arbitrators will be the decision of the arbitrators, which will be binding regardless of whether one of the parties fails or refuses to participate in the arbitration. The arbitrators will decide on the recovery of the costs of the arbitration, except expert and attorneys’ fees.
If the Buyer fails to pay any invoice when due or fails to comply with any of the terms and conditions contained herein, iuvo may, at its option and without prejudice to other remedies, cease the performance of services until the default is corrected or cancel iuvo’s remaining obligations under the contract. In addition, iuvo reserves the right to terminate this quotation/order in whole or in part if:
- Buyer ceases to conduct its operations in the normal course of business or is unable to meet its obligations;
- Any proceedings in bankruptcy or insolvency are brought by or against the Buyer;
- A receiver for Buyer is appointed or applied for;
- An assignment for the benefit of creditors is made by Buyer.
22. Buyer’s Authorization
Buyer represents and warrants that the person who executed the offer which this instrument accepts, or who will execute the Buyer’s acceptance of the offer contained in this instrument, has duly executed the relevant documents on behalf of the Buyer, and is duly authorized to so act.
23. Compliance with U.S. Export Regulations
The Buyer is hereby placed on notice that the technical data, services, or hardware furnished with this quotation or order acknowledgment may relate to articles controlled by the U.S. Government for export and may, therefore, be subject to export licensing requirements and limitations on disclosure or shipment to foreign nationals under U.S. Law. Federal, criminal, and civil penalties may result from any violation of these export provisions. BUYER INDEMNIFIES IUVO FROM ANY BREACH OF SUCH REQUIREMENTS AND LAWS FOLLOWING BUYER’S RECEIPT OF EXPORT CONTROLLED DATA OR HARDWARE.