1.1. The Terms and Conditions contained herein apply to the Next Level Genomics entity (“Seller” or “NLG”) identified in the quotation (“Quotation” or “Quote”) and along with the Seller Quotation from the Contract (“Contract”). A Quotation shall mean a formal statement issued by NLG to the customer stated on the Quotation (“Customer”) setting out the estimated cost of service. The Quotation may be provided herewith or provided separately. Unless the Seller and Customer have signed a separate agreement for the specific services outlined in the Quote, with the express intent to supersede these Terms and Conditions, any provisions contained in any document issued by the Customer are expressly rejected, and if the terms and conditions in this Contract differ from the terms of the Customer’s order, this document shall be construed as a counteroffer and shall not be effective as an acceptance of the Customer’s order. This is the complete and exclusive statement of the Contract between the Seller and Customer concerning the Customer’s purchase of the services. No waiver, consent, modification, amendment, or change of the terms contained herein shall be binding unless in writing and signed by the Seller and Customer. The Seller’s failure to object to terms contained in any subsequent communication from the Customer will not be a waiver or modification of the terms set forth herein. The Customer’s issuance of an order to the Seller or the Seller’s commencement of the services outlined in the Quotation will constitute the Customer’s acceptance of these Terms and Conditions.
2.1 Performance of the Services.
NLG shall perform the services as described in the Quote and accordance with this Contract. Where applicable, NLG or its Affiliate shall produce the Results and transfer them to the customer in a suitable format, which may include making the Results available for the Customer’s review on the NLG customer web portal.
2.2 Completion of the Services.
Upon completion of the services, all applicable biological materials and/or items to be processed or produced (“Samples”) in NLG’s possession will be discarded or retained per NLG’s standard operating procedures unless otherwise agreed upon in writing. In the event NLG has agreed to ship Samples to the Customer, NLG will package the Samples using appropriate materials for the condition of the Samples and by prevailing regulations. All transportation and associated costs will be at the Customer’s expense. NLG will not be responsible for or accept liability for Samples lost, damaged, or compromised in transit due to a carrier’s actions or inactions.
3.1 Payment of Fees.
NLG will invoice the Customer upon completion of the Services, and the Customer shall pay all invoices within thirty (30) days of the date of the invoice in the currency of the locality in which Services were Quoted. If the Customer is part of a lab with a principal investigator, invoices may be consolidated and reflect all purchases made under the authority of the principal investigator.
3.2 Late Payments.
Any payment not received by the due date shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by Applicable Law, whichever is lower. The Customer shall also be responsible for attorneys’ fees and other costs of collection, if any, incurred by NLG in attempting to collect any amounts due from the Customer.
3.3 Prepaid Fees.
Customers may pay fees in advance of the request for or performance of Service (“Prepaid Fees”) where authorized by NLG. Prepaid Fees are non-refundable when paid and will expire if any remain twelve (12) months after the date of NLG’s last Service to Customers. NLG may apply the Prepaid Fees to any Quote or other amounts owed by the Customer.
4.1 Samples.
At all times, Samples shall remain the property of the Customer or, if applicable, the Institution. “Institution” means the institution or lab associated with the Customer and identified in the Quote. Customer shall own all Intellectual Property rights in all improvements to the samples that NLG conceives, invents, reduces to practice, develops, or makes, solely or jointly with Customer or others, in the course of performance of this Agreement or as a result of receipt of Customer’s Confidential Information (collectively, the “New Customer Intellectual Property”). NLG at this moment assigns and agrees to assign to the Customer, all of its rights, title, and interest in any New Customer Intellectual Property. NLG will use reasonable effort to promptly disclose to the Customer in writing all New Customer Intellectual Property. NLG will execute and will require NLG’s personnel involved in the performance of the Services to execute any documents required to confirm the Customer’s ownership of the New Customer Intellectual Property, and any documents required to apply for, maintain, and enforce any patents or other rights in the New Customer Intellectual Property. Upon the Customer’s request, at the Customer’s expense and at no cost to NLG, NLG will assist the Customer as necessary to apply for, maintain, and enforce any patents or other rights in the New Customer’s Intellectual Property. “Intellectual Property” means proprietary methods, discoveries, inventions, patents, trade secrets, copyrights, trademarks, service marks, trade dress, compositions, products, procedures, know-how, data, reports, programs, processes, protocols, written or electronic writings, illustrations, images, and any other form of proprietary rights.
4.2 Results.
Upon payment in full for the Services, the Customer shall own all Intellectual Property Rights, if any, in the data produced by NLG or its Affiliates as a result of performing the Services (the “Results”).
4.3 Records.
Except as otherwise outlined in this Agreement, NLG will own all rights to the written and electronic records, accounts, notes, reports, and data relating to its performance of the Services (the “Records”).
4.4 Pre-existing Intellectual Property.
Neither party will, as a result of this Agreement, acquire any right, title, or interest in any Intellectual Property that the other party owned or controlled as of the effective date of, or that the other party obtains ownership or control of separate and apart from the performance of, this Agreement. For further clarity, and notwithstanding anything herein to the contrary, the Customer agrees that NLG’s core technologies existing before the Services shall remain the sole property of NLG and that any improvements to NLG’s core technologies that are not specifically related to the Samples, whether or not conceived within the performance of the Services in connection with this Agreement, shall be the sole property of NLG. For the present Agreement, “NLG’s core technologies” means all models, programs, methodologies, know-how, and general knowledge possessed by NLG.
5.1 Term.
The term of this Agreement shall commence on the date of the Quote and shall continue to govern until the completion of the Quote.
5.2 Termination.
Not superseding any Government tender agreements, contracts, or clauses, either party may terminate this Agreement upon written notice if the other party has breached any of its material obligations under this agreement and (a) such breach has not been cured within 30 days after written notice of the breach, or (b) if a plan reasonably acceptable to the non-breaching party is not implemented to cure as soon as practicable after notice of the breach. In the event of termination due to the Customer’s material breach, NLG may, at its sole discretion, either (i) return all Samples in its possession to the Customer at the Customer’s expense or (ii) destroy all Samples at the Customer’s expense. In either case, the Customer shall continue to be responsible for (A) any fees incurred by NLG before the effective date of termination, (B) fees incurred by NLG concerning wind-down services, and (C) noncancellable expenses committed before the effective date of termination.
6.1 In the course of the performance of this Agreement, NLG or its Affiliates and/or Customer (each as the receiving party as the case may be) may acquire confidential and proprietary materials and information concerning the other party (each as the disclosing party as the case may be), which the disclosing party marks or otherwise identifies in writing as being confidential, including, without limitation, any technical, scientific, or business information, irrespective of the form of communication (the “Confidential Information”). Each receiving
party to the disclosing party’s Confidential Information agrees not to use it other than for the performance of its obligations under this Agreement, nor to transfer or otherwise disclose to any third party any Confidential Information concerning the other party, unless and except to the extent that such use or disclosure is consented to in writing in advance by the disclosing party. Each party shall (i) give access to such Confidential Information solely to those of its or its Affiliates’ directors, officers, employees, representatives, agents, and advisors (collectively “Representatives”) with the need to have access thereto for the party’s performance under this Agreement and who are bound by obligations of confidentiality and restricted use consistent with those outlined in this Agreement, and (ii) take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its Confidential Information, but in no event shall a party apply less than a reasonable standard of care to prevent such disclosure or unauthorized use.
6.2 The term “Confidential Information” does not include information which (i) is or becomes generally available to the public other than through the fault of the receiving party, (ii) the receiving party can demonstrate by written records was within the receiving party’s possession or otherwise known to the receiving party before its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not bound by a confidentiality obligation to the disclosing party, (iii) becomes available to the receiving party on a non-confidential basis from a source other than by or on behalf of the disclosing party, provided that such source is not bound by a confidentiality obligation to the disclosing party, or (iv) the receiving party can demonstrate by clear and convincing evidence was developed by or on behalf of the receiving party independent of knowledge or information obtained from the disclosing party. To the extent any Confidential Information is required by Applicable Law to be disclosed to a governmental authority, the receiving party may disclose that portion of such Confidential Information that, in the opinion of its counsel, is required to be disclosed, provided, however, that to the extent permitted by Applicable Law, the receiving party shall use its best efforts to obtain the agreement of such above-mentioned authority to maintain the confidentiality of any such information and shall give the disclosing party prompt notice of such required disclosure to allow the disclosing party to seek protective treatment of such information.
7.1 Customer Representations. The Customer represents, warrants, and covenants the following:
(i) The Customer has all ownership and other necessary rights to the Samples required to permit NLG and its Affiliates to perform the Services.
(ii) The Customer has read and understands the terms of this Agreement, can enter into this Agreement, and performs its obligations hereunder, and this Agreement is valid and enforceable against it.
(iii) If an Institution is identified in the Quote: (a) the Customer has the power and authority to bind the Institution to the terms of this Agreement, including the payment obligations outlined in Section III, and (b) this Agreement is valid and enforceable against the Institution.
7.2 NLG Representations. NLG represents, warrants, and covenants the following:
(i) NLG has the authority to enter into this Agreement and perform its obligations hereunder, and this Agreement is valid and enforceable against it.
(ii) NLG will perform the Services consistent with industry standards and with all applicable federal, state, and local laws, rules, and regulations.
8.1 Damage Limitations. NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, NLG’S TOTAL LIABILITY TO THE CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY QUOTE OR ANY OTHER WRITTEN AGREEMENT MADE PURSUANT HERETO, SHALL NOT EXCEED, AND NLG SHALL NOT BE REQUIRED TO PAY, INDEMNIFY OR REIMBURSE CUSTOMER FOR ANY AMOUNT OVER, THE AMOUNT PAID UNDER THE QUOTE ON WHICH SUCH LIABILITY IS BASED. THE CUSTOMER’S CLAIM FOR A RETURN OF SUCH AMOUNTS PAID SHALL BE THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY BE ENTITLED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING IN CONNECTION WITH THE DEFAULT OR BREACH OF ANY OBLIGATION OF ANY OTHER PARTY UNDER THIS AGREEMENT.
8.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND THE RESULTS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. NLG HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, TO THE CUSTOMER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NLG OR NLG EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CUSTOMER’S RIGHTS.
To the extent an Institution is identified in the Quote, the terms of this Section shall apply.
9.1 The Customer permits NLG to provide the Institution with access to the Results if the Institution requests such access from NLG.
9.2 The Customer agrees that NLG may terminate the Customer’s account or the Customer’s access to the Results for the Institution to enforce rights it may have with the Customer.
9.3 NLG shall have no liability concerning providing the Results to the Customer while acting in the good faith belief that the Customer is entitled to receive the Results. NLG shall have no obligation to undertake any investigation before providing the Customer with the Results.
10.1 Conflict. In the event of any conflict between the terms of this Agreement and the terms of a Quote, the terms specifically outlined in this Agreement shall control, except to the extent the parties expressly provide otherwise in the Quote.
10.2 Subcontracting. NLG may subcontract any portion of the Services, provided NLG remains liable for the performance of its subcontractor.
10.3 Independent Contractor. NLG shall perform the Services as an independent contractor of the Customer and shall have complete and exclusive control over the NLG Facilities and its equipment, employees, and agents. Nothing in this Agreement, any attachment hereto, or any other written agreements made pursuant hereto shall constitute NLG, or anyone furnished or used by NLG in the performance of services hereunder, an employee, joint venturer, partner, or servant of the Customer.
10.4 Force Majeure. Except for payment obligations, each party shall be excused from performing its respective obligations under this Agreement, any attachments hereto, or any other written agreements made pursuant hereto if such party’s performance is delayed or prevented by any event beyond such party’s reasonable control, including, without limitation, acts of God, fire, explosion, weather, disease, pandemic, war, insurrection, civil strife, riots, or government action; provided, however, that such performance shall be excused only to the extent of and during such disability. Any time specified for the completion of performance in a Quote falling due
after the occurrence of any such event shall be automatically extended for a period of time reasonable under all the circumstances to recover from such disability, as determined in the sole discretion of the disabled party. NLG will promptly notify the Customer if, by reason of any of the events referred to herein, NLG is unable to meet any such time for performance specified in a Quote.
10.5 Non-Waiver. The failure of either party in any one or more instances to insist upon strict performance of any of the terms and conditions of this Agreement shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms or conditions on any future occasion.
10.6 Severability. In the event any term of this Agreement is, becomes, or is declared to be invalid or void by any court of competent jurisdiction, such term or terms shall be null and void and shall be deemed deleted from this Agreement, and all the remaining terms of the Agreement shall remain in full force and effect.
10.7 Governing Law and Venue. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of Singapore, including all matters of construction, validity, performance, and enforcement, without giving effect to the principles of conflict of laws. Any action brought by any party hereto shall be brought within the Republic of Singapore.
10.8 Assignment. Neither this Agreement nor any Quote, nor the rights or obligations arising hereunder and thereunder, may be assigned or transferred by either party without the prior written consent of the other party, and any attempted assignment or transfer without such written consent shall be of no force or effect; provided, however, that NLG may assign this Agreement or any Quote without such consent: (i) in connection with the transfer or sale of all or substantially all of its assets, stock business, or merger or consolidation with another
company or entity, or (ii) to an Affiliate. Subject to the restrictions contained in the preceding sentence, this Agreement shall be binding upon the successors and assigns of the parties.
10.9 Entire Agreement. This Agreement, together with all attachments hereto and any Quote or other written agreements executed by the parties pursuant hereto, represents the entire understanding between the parties with respect to the subject matter hereof and thereof.
10.10 Amendments. No amendment of any provision of this Agreement, any Quote or attachment hereto, or any other writing executed in connection herewith shall be valid unless the same shall be in writing and signed by the parties hereto.
10.11 Headings. The section headings or other captions contained in this Agreement are inserted for convenience of reference only and shall not affect in any way the meaning or interpretation of the provisions of this Agreement.
10.12 Survival. Each Section that, by its terms, contemplates performance or obligations following the termination of this Agreement shall so survive.
Next Level Genomics (NLG) is a cutting-edge genomics provider offering long-read sequencing (LRS) and spatial genomics capabilities in our two laboratories in Singapore, located in Biopolis.
Main Office and NGS Lab
Next Level Genomics Pte Ltd
3 Biopolis Drive, #05-19 Synapse
Singapore 138623
Spatial Biology Lab
60 Biopolis Street
#05-07 Genome
Singapore 138672
Copyright © 2024 Next Level Genomics. All rights reserved.
