Terms and Conditions of Service //
General Terms and Conditions
The terms and conditions which follow (the “Terms”), together with the quotation (the “Quote”) to which these Terms are attached or incorporated by reference will exclusively govern the manner in which MRM PROTEOMICS INC. (“MRM PROTEOMICS”) agrees to provide certain Services to the Client (as those terms are defined below). In the event of any conflict between these Terms and the provisions of any Quote, request for services, invoice, bill of sale or other instrument prepared in connection with the Services or Peptides to be provided by MRM PROTEOMICS, these Terms will prevail.
Each Quote will be subject to written acceptance by MRM PROTEOMICS and, following such acceptance, the Quote together with these Terms will form a binding legal agreement between MRM PROTEOMICS and the Client.
In these Terms:
(a) “Agreement” means these Terms together with the Quote to which these Terms are attached or incorporated by reference;
(b) “Client” means the client identified in a Quote;
(c) “Client Materials” means the gel plugs, cells, tissue samples and other materials described in the Purchase Order, to be provided by MRM PROTEOMICS for the purposes of undertaking the Services;
(d) “Fees” means the fees specified in a Quote, together with all shipping and handling charges, as determined by MRM PROTEOMICS, and all applicable taxes.
(e) “Related Persons” means every MRM PROTEOMICS officer, director, employee, parent company, subsidiary or affiliated company, including without limitation the University of Victoria, the University of Victoria Innovation and Development Corporation, and all faculty and staff of the University of Victoria;
(f) “Services” means the testing and other clinical and analytical services described in the Purchaser Order, to be provided by MRM PROTEOMICS; and
(g) “Testing Data” means the raw and interpreted results (if any) of the Services undertaken by MRM PROTEOMICS in connection with a Quote.
Subject to these Terms and acceptance of a Quote by MRM PROTEOMICS, MRM PROTEOMICS will provide the Services and the Test Data arising therefrom to the Client in accordance with the schedule and additional terms and conditions set out in the Quote.
3 CLIENT MATERIALS
The Client must make shipping arrangements for any Client Materials in accordance with the rules and regulations established by MRM PROTEOMICS and amended from time to time in the sole discretion of MRM PROTEOMICS, and in compliance with all applicable import, export, customs and other laws and regulations, including all health and safety regulations and relevant handling procedures and protocols in effect from time to time. The Client is responsible for obtaining any and all permits, forms or permissions that may be required by all regulatory authorities to ship and deliver the Client Materials to MRM PROTEOMICS and for MRM PROTEOMICS to accept delivery of the Client Materials. The Client represents and warrants that: (a) it has the right and authority to provide the Client Materials to MRM PROTEOMICS for analysis under the terms and conditions of Agreement; (b) the Client Materials were collected lawfully and with all necessary consents and approvals; and (c) the collection, use and disclosure of the Client Materials by MRM PROTEOMICS pursuant to the Agreement will not violate the rights of any third party. IN NO CIRCUMSTANCE WILL A CLIENT SUBMIT CLIENT MATERIALS TO MRM PROTEOMICS WHICH ARE RADIOACTIVE, WHICH CONTAIN LIVE BIOLOGICAL AGENTS OR WHICH OTHERWISE PRESENT ANY HEALTH OR ENVIRONMENTAL RISKS OR WHICH COULD CAUSE DIRECT OR INDIRECT DAMAGE OR HARM TO MRM PROTEOMICS, ANY RELATED PERSONS OR ANY PROPERTY BELONGING TO MRM PROTEOMICS OR ANY RELATED PERSONS.
In consideration of the Services and the Test Data to be provided by MRM PROTEOMICS to the Client, the Client covenants and agrees to pay the Fees to MRM PROTEOMICS in accordance with the Schedule set out in the Quote.
Subject to the rights reserved to MRM PROTEOMICS in accordance with Part 9 below, MRM PROTEOMICS will use commercially reasonable efforts to hold the Client Materials and to otherwise keep all Test Data and every Agreement in confidence, except where such Agreement or its contents:
(a) is publicly known or becomes publicly known through no unauthorized act of MRM PROTEOMICS;
(b) must be disclosed pursuant to a legal requirement imposed on MRM PROTEOMICS or any Related Persons, so long as MRM PROTEOMICS provides the Client with seven (7) days written notice of such requirement, prior to any disclosure.
6 PRICING CONFIDENTIALITY
Quotes and pricing terms are negotiated between Client and MRM PROTEOMICS and may be unique to the Client. Therefore, and except as otherwise provided by law, Client hereby agrees to keep the pricing arrangement confidential. Client will not use this confidential information in furtherance of its business, or the business of anyone else, whether or not in competition with MRM PROTEOMICS.
7 DISCLAIMER OF WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE TEST DATA WILL BE PROVIDED TO THE CLIENT ON AN "AS IS, WHERE IS” BASIS. THE CLIENT ACKNOWLEDGES AND AGREES THAT NEITHER MRM PROTEOMICS NOR RELATED PERSON MAKES OR HAS MADE ANY REPRESENTATIONS OR EXTENDED ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, TEST DATA OR ANY OTHER MATTER TOUCHED UPON IN THESE TERMS, NOR HAS THE CLIENT RELIED UPON ANY SUCH REPRESENTATIONS OR WARRANTIES. NEITHER MRM PROTEOMICS NOR ANY RELATED PERSON MAKES OR HAS MADE ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE TEST DATA FOR A PARTICULAR PURPOSE, OR OTHERWISE REPRESENTED OR WARRANTED THAT USE OF THE TEST DATA WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHTS.
8 LIMITATION OF LIABILITY
NEITHER MRM PROTEOMICS NOR ANY RELATED PERSON WILL BE LIABLE TO THE CLIENT OR TO ANY OTHER PERSON OR ENTITY FOR ANY LIABILITY, LOSS OR DAMAGES CAUSED OR ALLEGED TO HAVE BEEN CAUSED, EITHER DIRECTLY OR INDIRECTLY, THROUGH PROVISION OF PART OR ALL OF THE SERVICES OR OTHERWISE ANY USE OF THE TEST DATA. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL MRM PROTEOMICS OR ANY RELATED PERSON BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND), ARISING OUT OF OR RELATED TO ANY USE OF OR INABILITY TO USE THE TEST DATA. Without limiting the generality of the foregoing, the Client acknowledges and agrees that neither MRM PROTEOMICS nor any Related Person will be liable for any failure to provide any Service or Test Data as the direct or indirect result of an event of Force Majeure. For the purposes of this paragraph, “Force Majeure” means any delay or failure by MRM PROTEOMICS to perform its obligations as required by an Agreement to the extent that such delay or failure to perform is caused by a reason or circumstance beyond such party's control, including, without limitation, acts or omissions of the other party, third party non-performance, and failure or malfunction of computer or telecommunications hardware, equipment or software, provided that such party could not have foreseen the specific reason or circumstance which caused the delay or failure at the time of the conclusion of an Agreement or could not reasonably have been expected to have avoided or overcome it or its consequences.
THE CLIENT COVENANTS AND AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS MRM PROTEOMICS AND ALL RELATED PERSONS FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, DAMAGE, ACTION, CLAIM OR EXPENSE IN CONNECTION WITH ANY CLAIM, SUIT, ACTION, DEMAND OR JUDGMENT ARISING OUT OF CONNECTED WITH, RESULTING FROM, OR SUSTAINED AS A RESULT OF THE PROVISION BY MRM PROTEOMICS OF ANY SERVICES OR OTHERWISE ANY USE BY THE CLIENT OR ANY THIRD PARTY OF ANY TEST DATA.
10 COMPLIANCE WITH LAWS
The Client represents and warrants to MRM PROTEOMICS that it has the expertise and equipment necessary to handle the Client Materials with care and without danger to the Client’s employees, staff or the general public. The Client agrees to comply with all laws, regulations and ordinances, whether federal, state, provincial, county, municipal or otherwise, applicable to any use of the Test Data.
11 INTELLECTUAL PROPERTY
The Client will retain all right, title and interest in and to the Client Materials and any Test Data. MRM PROTEOMICS will retain all right, title and interest in and to in any other Intellectual Property and any tools, techniques or methodologies used by MRM PROTEOMICS in providing Services, and any enhancements developed by or on behalf of MRM PROTEOMICS with respect thereto. For the purposes of each Agreement, “Intellectual Property” means the right, title or interest in or to any products of the mind or the imagination, tangible or otherwise, and includes, without limitation, all works, inventions (whether patentable or not), discoveries, designs, ideas, artistic expressions, drawings, creations, developments, algorithms, compilations of information (whether copyrightable or not), and all derivations, modifications, enhancements and improvements of the same.
MRM PROTEOMICS may, at its option and in its sole direction, terminate any Agreement with the Client where in the course of providing services, MRM PROTEOMICS determines in its sole discretion that Services cannot be delivered in a manner which MRM PROTEOMICS considers economical, ethical, legal or practicable. MRM PROTEOMICS may further terminate any Agreement, at its option and in its sole direction, in the event of:
(a) the breach by the Client of any provision of an Agreement;
(b) the assertion against the Client by a third party of any claim of product liability;
(c) the violation by the Client or anyone for whom the Client is in law responsible of the intellectual property rights of either MRM PROTEOMICS or any Related Persons;
(d) the violation by the Client of any applicable local, provincial, state or federal statute;
(e) conduct on the part of the Client that might be detrimental to the business or the financial position of MRM PROTEOMICS;
(f) conduct on the part of the Client or anyone for whom the Client is in law responsible which is of such a serious and substantial nature that, as determined in the sole discretion of MRM PROTEOMICS, continuation of an Agreement would injure the reputation of MRM PROTEOMICS or any Related Persons; or
(g) any act of the Client or any agent, authorized representative or creditor of the Merchant which results in the Merchant becoming subject to the provisions of the Winding-Up Act (Canada), the Companies' Creditors Arrangement Act (Canada), the Bankruptcy Act (Canada) or any similar legislation applicable in the jurisdiction where the Merchant is ordinarily resident.
Notwithstanding termination of an Agreement for any reason, the Client will remain liable to pay to MRM PROTEOMICS any sum due and owing thereunder, and for that purpose the Client covenants and agrees that the obligations arising under parts 2, 4 and 7 of these Terms will survive any such termination, howsoever caused.
13 GENERAL PROVISIONS
(a) Each Agreement will be governed by and construed in accordance with the law of British Columbia and the parties agree to attorn to the exclusive jurisdiction of the courts of British Columbia.
(b) The provisions of each Agreement will be severable in that if any provision in the Agreement is determined to be invalid or unenforceable under any controlling body of law, that will not affect the validity or enforceability of the remaining provisions of that Agreement.
(c) While MRM PROTEOMICS and the Client intend by an Agreement to establish a contractual relationship, it is not the intention of either party to undertake a joint venture or to make MRM PROTEOMICS in any sense an agent, employee, or partner of the Client. The parties expressly agree that they are independent contractors, and no Agreement will in any way create a partnership between MRM PROTEOMICS and the Client (or any Related Persons), whether at common law or in accordance with any applicable statute, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.
(d) The Client acknowledges and agrees that any sum to be paid by the Client in accordance with an Agreement which remains unpaid after the date upon which it becomes due will accrue interest at the rate of twenty-four (24.0%) percent per annum, compounded monthly.
(e) Any notices required under an Agreement will be sufficient if given in writing and delivered in person or by facsimile transmission to the address or facsimile number first written above. Any such notice will be deemed to have been duly given upon delivery if delivered in person, and on the day following transmission if given by facsimile.
(f) The Client may not assign, transfer or sell its interest in an Agreement, in part or in whole, without the express written consent of MRM PROTEOMICS.
(g) Headings in an Agreement are included for reference only and must not be used for interpretation purposes.
(h) No modification of this and will be binding, unless in writing and signed by an authorized representative of each party.
(i) Each Agreement constitutes and contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior understandings or written or oral agreements between them respecting the subject matter of that Agreement.
(j) Subject to the limitations on assignment contained herein, each and all of the covenants, terms and provisions of an Agreement will be binding upon each of these parties and their respective successors, heirs, executors, personal representatives and assigns.