These Terms and Conditions are effective as of December 1, 2020 and replace the previous terms and conditions which can be found here
All Order Forms (as defined below) that are entered into on or after December 1, 2020 will be governed by the Terms and Conditions in this document below.
TETRASCIENCE, INC. (“TETRASCIENCE” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT EITHER REGISTERS FOR USE OF THE SUBSCRIPTION SERVICE (AS DEFINED BELOW) VIA TETRASCIENCE’S ONLINE REGISTRATION PORTAL OR ENTERS INTO A WRITTEN ORDER FORM WITH TETRASCIENCE THAT REFERENCES THIS AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (“AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM TETRASCIENCE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND TETRASCIENCE. BY AGREEING TO THESE TERMS VIA TETRASCIENCE’S ONLINE REGISTRATION PORTAL OR BY ENTERING INTO A WRITTEN ORDER FORM WITH TETRASCIENCE THAT REFERENCES THE AGREEMENT BELOW (WHICH ORDER FORM IS HEREBY INCORPORATED INTO THIS AGREEMENT), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY
- Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity
- Confidential Information has the meaning given to it in Section 4.1.
- Customer Data means all Data made available by the Customer or its Users to TetraScience or otherwise provided by Customer or its Users in connection with the provision of the Services.
- Data means text, images, materials, photos, audio, video, and all other forms of data or communication.
- Documentation means the documentation for the Subscription Service generally supplied by TetraScience to assist its customers in the use of the Subscription Service, including user manuals and other written materials.
- Effective Date is the date that the first Order Form or SOW is entered into between the Parties referencing this Agreement.
- Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Service.
- Hardware means all hardware, equipment and sensors (excluding the Sensors) provided by TetraScience.
- Order Form means each TetraScience ordering document (which may include TetraScience’s quote or similar document) signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Subscription Service ordered by Customer from TetraScience, sets forth the prices for the Subscription Service and contains other applicable terms and conditions. Order Forms may also be used for Customer to order Professional Services from TetraScience.
- Professional Services means configuration, implementation, training, consulting and/or custom services to be provided by TetraScience. All Professional Services will be set forth and described on a SOW or Order Form, as the case may be.
- Sensor means a TetraScience IoT Gateway, Temperature and Humidity monitoring sensor made available by TetraScience for use by Customer of Subscription Service.
- Services means the Subscription Service, Technical Support and any Professional Services provided by TetraScience pursuant to Section 2.1 hereof.
- SOW means a Statement of Work referencing this Agreement and entered into by both Parties from time to time that describes the Professional Services to be provided by TetraScience, sets forth the prices for the Professional Services and contains certain other related terms as agreed between the Parties.
- Subscription Service means TetraScience’s proprietary subscription-based laboratory monitoring solution set forth and described on the applicable Order Form including the Sensors.
- Technical Support means TetraScience’s technical support services for the Subscription Service.
- TetraScience Data means all Data made available by TetraScience to Customer in connection with the Customer’s use of the Services.
- Users mean individuals who are authorized by the Customer to use the Services. Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.
- Work Product means any deliverables, content, reports, analyses or documentation developed by TetraScience on behalf of Customer and delivered to the Customer in the performance of any Professional Services.
- Services. TetraScience shall provide the Customer with the specific Services and Hardware specified on an Order Form or SOW, as the case may be. Any conflict between the terms and conditions set forth in this Agreement and any Order Form or SOW shall be resolved in favor of this Agreement. The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by TetraScience regarding future functionality or features.
- License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, TetraScience hereby grants to the Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 10.2) license to access and use the Subscription Service (including the Sensors) solely for the Customer’s internal business purposes. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party. The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service. The Customer agrees: (a) that only authorized Users are permitted to use the Subscription Service; (b) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service and the Documentation from unauthorized use and/or access.
- Sensors. Unless Customer has purchased the Sensors from TetraScience, Customer shall use the Sensors during the term of the applicable Order Form solely in connection with its use of the Subscription Service and shall return such Sensors to TetraScience upon termination or expiration of the Order Form in the same condition as provided by TetraScience (reasonable wear and tear excepted)
3. FEES; PAYMENT TERMS
- Fees. The Customer agrees to pay TetraScience for Services and Hardware provided and expenses incurred in accordance with and at the rates specified in each Order Form and SOW. Unless otherwise set forth on the Order Form or SOW, payment shall be due within thirty (30) days after receipt of TetraScience’s invoice and shall be made in US Dollars. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by TetraScience in connection with any Services rendered provided that Customer has pre-approved of such travel and expenses in writing in advance.
- Taxes. Fees are exclusive of taxes. The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services and Hardware rendered hereunder, except for taxes related to the net income of TetraScience and any taxes or obligations imposed upon TetraScience under federal, state and local wage laws.
- Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and the Customer further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without TetraScience’s prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
- Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
- Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
- Subscription Service Warranty. TetraScience warrants that during the term of any Order Form for the Subscription Service (i) the Subscription Service (including all Sensors) will conform, in all material respects, with the Documentation, and (ii) all related Technical Support shall be provided in a competent and professional manner. Such warranty does not apply to any Sensors that have been damaged, mishandled, mistreated, altered or used or maintained or stored other than in conformity with the Documentation. TetraScience does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free or that the Subscription Service will detect all changes in items monitored by the Subscription Service including, without limitation, temperature and humidity. TetraScience makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, TetraScience will, at no additional cost to Customer, provide remedial services or replacements necessary to enable the Subscription Service to conform to the warranty. The Customer will provide TetraScience with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Order Form and this Agreement.
- Professional Services Warranty. TetraScience warrants that any Professional Services provided hereunder shall be provided in a competent and professional manner and in accordance with any specifications set forth in the SOW in all material respects. TetraScience further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable SOW. If the Services are not performed as warranted or the Work Product does not so comply, then, upon the Customer’s written request, TetraScience shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer. Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be.
- Hardware Warranty. Unless otherwise expressly stated in the Order Form, all Hardware is warranted against defects in materials and manufacturing for a period of twelve (12) months from the shipping date. Additional individual warranty statements in the instructions for use (“IFU”) may be included in the packaging of each Hardware product. As Customer’s sole and exclusive remedy for any breach of the foregoing warranty by TetraScience, TetraScience will repair or replace, at its election, Hardware discovered to be defective during the warranty period set forth above and returned by the Customer in accordance with TetraScience’s return policy. This warranty does not cover repair or replacement of any Hardware that malfunctions because of or is otherwise damaged as a result of (a) Customer’s failure to comply with the provisions and instructions contained in the manual or labeling accompanying the Hardware; (b) the failure of anyone other than TetraScience or its service or supply contractors to comply with the written instructions or recommendations; (c) Customer or its permitted users combining the Hardware with a third party’s product or an incompatible TetraScience product; (d) any alteration or improper storage, handling, transporting, use or maintenance of any part of the Hardware by anyone other than TetraScience or its service or supply contractors; (e) any external force or unusual stress such as building structural deficiency, power surge, fluctuation or failure, or climate control failure; or (f) actions beyond TetraScience’s reasonable control.
- No Other Warranty. TETRASCIENCE DOES NOT REPRESENT THAT THE SERVICES OR HARDWARE WILL BE ERROR-FREE, THAT THE SERVICES OR HARDWARE WILL PROPERLY MEASURE OR DETECT ALL LEVELS AND/OR CHANGES IN TEMPERATURE OR HUMIDITY OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES OR HARDWARE WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TETRASCIENCE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND HARDWARE ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
6. LIMITATION OF LIABILITY
- Consequential Damage Exclusion. Except for a Party’s willful misconduct, neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
- Limitation of Liability. The total cumulative liability of TetraScience to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid by Customer to TetraScience under the Order Form or SOW for the Services or Hardware which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Form and SOW reflects this allocation of risk and the limitation of liability specified herein.
- Term. This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Form for the Subscription Service shall be set forth on the Order Form. Unless otherwise set forth in the Order Form, upon the expiration of the initial term of the Order Form, the Order Form will automatically renew for additional periods of one year each unless either Party notifies the other Party in writing at least thirty (30) days prior to the then current renewal date that it has elected not to renew the SOW. TetraScience reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Form upon providing the Customer with written notice thereof (which notice may be provided by e-mail) at least 60 days prior to the then current renewal date of the Order Form.
- Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form or SOW (i) immediately in the event of a material breach of this Agreement or any such Order Form or SOW by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form or SOW shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms and SOWs. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms or SOWs then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form and SOW.
- Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form or SOW, TetraScience shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services. The Customer shall pay TetraScience for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. If the Order Form is terminated for any reason other than a termination as a result of TetraScience’s material breach, then TetraScience shall be entitled to all of the Fees due under the applicable Order Form for the entire unexpired terminated portion of the term of such Order Form. If the Order Form is terminated as a result of TetraScience’s material breach, then Customer shall be entitled to a refund of the pro rata portion of any prepaid subscription fees paid by Customer to TetraScience under this Agreement for the remaining unexpired terminated portion of the Term. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Within thirty (30) days following termination, the Customer may retrieve the Customer Data in accordance with established and reasonable system access procedures. After such period, TetraScience will have no further obligation to store and/or make available the Customer Data and may delete the same
8. OWNERSHIP; USE OF CONTENT; OBLIGATIONS
- Subscription Service. The Customer acknowledges and agrees that as between TetraScience and the Customer, all right, title and interest in and to the Subscription Service (excluding any Customer Data) and including all modifications and configurations, all TetraScience Data, all Sensors and all of TetraScience’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by TetraScience in providing the Subscription Service and all derivatives thereof are and shall remain TetraScience’s or its licensors’. The TetraScience name, all TetraScience logos, and the product names associated with the Subscription Service are trademarks of TetraScience or third parties, and no right or license is granted to use them. The Customer shall not remove any TetraScience trademark or logo from the Subscription Service. During the term of this Agreement, TetraScience grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the TetraScience Data solely in connection with the Customer’s permitted use of the Subscription Service. TetraScience shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from the Customer’s use of the Subscription Service) provided, however, that TetraScience shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with the Customer or any of its Users. In the event Customer provides TetraScience with Feedback, Customer hereby grants to TetraScience an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed.
- Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to TetraScience a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer. Upon termination of the Subscription Service, TetraScience shall make such Customer Data available to the Customer in a mutually agreed upon format.
- Customer Obligations. The Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Without TetraScience’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service to any third-party. Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.
- Work Product. Except as otherwise set forth on an Order Form or SOW, Customer will have a perpetual, non-exclusive, non-transferable license to use any Work Product developed by TetraScience in the performance of the Services and delivered to Customer, upon Customer's payment in full of all amounts due hereunder, solely for Customer’s internal business use. TetraScience retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by TetraScience in the performance of this Agreement.
- TetraScience Indemnification. Subject to Section 9.3 below, TetraScience will defend Customer, its Affiliates and their respective officers, directors, employees and agents (collectively, the "Customer Indemnitees"), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Services infringe or misappropriate such third party's intellectual property rights (a "Claim Against Customer"), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in TetraScience's sole opinion, to be brought, TetraScience will, at its option and expense (A) obtain the right for Customer to continue using the Services; (B) replace or modify the affected Services so that they becomes non-infringing; or (C) upon notice to Customer, terminate this Agreement or Customer's use of the affected Services, provided that in the case of (C) TetraScience promptly refunds to Customer the prorated portion of any unearned pre-paid annual subscription fees paid hereunder for the affected Services. TetraScience's obligations in this Section 9.1 do not cover third party claims to the extent such claims arise from: (1) any products, services, technology, materials or data not created or provided by TetraScience (including without limitation any Customer Data), (ii) any part of the Services made in whole or in part in accordance to Customer specifications, (iii) any modifications made after delivery by TetraScience, (iv) any combination with other products, processes or materials not provided by TetraScience (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance with this Agreement or any Documentation.
- Customer Indemnification. Subject to Section 9.3 below, Customer will defend TetraScience, its Affiliates and their respective officers, directors, employees and agents (collectively, the "TetraScience Indemnitees") against any claim, demand, suit or proceeding made or brought against any or all of the TetraScience Indemnitees by a third party (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, (ii) arising out of or attributable to the Customer’s breach of Sections 8.3 above, or (iii) arising out of or attributable to Customer’s misuse of the Services (each, a "Claim Against TetraScience"), and will indemnify the TetraScience Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the TetraScience Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against TetraScience.
- Indemnification Procedure. Each Party’s obligation to indemnify the other party is conditioned on the Party seeking indemnification: (i) promptly notifying the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (ii) allowing the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (ii) giving the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.
- Sole Remedy. This Section 9 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this section
- Entire Agreement. This Agreement, including all Exhibits hereto and all Order Forms and SOWs, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Form or SOW and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form or SOW. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by TetraScience. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
- Assignment. This Agreement shall be binding upon and for the benefit of TetraScience, the Customer and their permitted successors and assigns. Either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. TetraScience may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that TetraScience shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions.
- Disputes. Any disputes between the Parties arising out of this Agreement shall be resolved as follows: Members of the senior management of both Parties shall meet to attempt to resolve such disputes. If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation. Within fifteen (15) days after such written notification, the Parties shall meet for one day with an impartial mediator. The costs and expenses of the mediator shall be shared equally by the Parties. If the dispute is not resolved by mediation, the dispute shall be settled in the federal and state courts sitting in Boston, Massachusetts, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either Party may seek injunctive relief in any court of competent jurisdiction.
- Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
- Relationship of the Parties. TetraScience and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
- Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party (each a “Force Majeure Event”).
- Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Order Form. Either Party may change its address by giving written notice of such change to the other Party.
- Modifications to Subscription Service. TetraScience may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.
- Publicity. Unless otherwise set forth in an Order Form, Customer hereby grants TetraScience a non-exclusive license solely during the term of the Services Order to list Customer’s name and display the Customer’s logo in the customer section of TetraScience’s website and to use Customer’s name and logo in TetraScience’s customer lists but only to the extent that other customers of TetraScience are also listed on such list. Any other use by TetraScience of the Customer’s name, logo or trademark requires the Customer’s prior written consent (such consent not to be unreasonably withheld).
- No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
- Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.