These terms and conditions (Agreement) are the only terms that govern the provision of services by Source Molecular Corporation (SMC) to the entity requesting such services (Client). These terms and conditions of this Agreement prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend the terms and conditions of this Agreement.
SMC will provide to Client the services (Services) set out in one or more service orders to be issued by Client and accepted by SMC (Service Order). Service Orders will be deemed accepted only after SMC issues an order confirmation referencing the specific Service Order (Order Confirmation). In the event of any conflict between this Agreement and the Order Confirmation, this Agreement will govern, unless the Order Confirmation expressly states that the terms and conditions of the Order Confirmation will control.
FEES, PAYMENT AND TAXES
Client shall pay the fees specified in the applicable Order Confirmation. All fees shall be payable within 30 days of the date of SMC’s invoice, unless otherwise provided in the applicable Order Confirmation. If payments are not timely made, SMC may charge interest on any unpaid amounts at a rate of 1.5% per month and suspend performance for all Services. Client shall reimburse SMC for all costs incurred in collecting any late payments, including attorneys’ fees. SMC’s fees are exclusive of, and Client is responsible for, all applicable sales, use and excise taxes, and any other similar taxes, duties and charges.
SMC will use reasonable efforts to meet performance dates specified in Order Confirmations, but shall not be liable for any delay or non-performance resulting from causes beyond its reasonable control, including but not limited to, fire, flood, earthquake, governmental actions, riots, acts of war or terrorism, transportation delays, or inability to obtain necessary materials from usual sources. In such event, SMC’s performance shall be excused for a commercially reasonable time that is at least the length of time lost due to such delay.
SMC will, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum that is commercially reasonable, with financially sound and reputable insurers. Upon Client’s request, SMC will provide Client with a certificate of insurance from SMCs insurer evidencing the insurance coverage.
SMC acknowledges that it may be necessary for Client to disclose certain confidential and proprietary information to SMC in order for SMC to perform duties under this Agreement. During the term of this Agreement SMC will not disclose or use any proprietary or confidential information of Client without Client’s prior written permission except to the extent necessary to perform services on Client’s behalf. During the term of this Agreement SMC will use reasonable care to prevent the unauthorized use or dissemination of Client’s confidential information. Confidential information is limited to information clearly marked as confidential, or disclosed orally and summarized and identified as confidential in a writing delivered to SMC within 15 days of disclosure. Confidential information does not include information that: (a) SMC knew before Client disclosed it; (b) is or becomes public knowledge through no fault of SMC; (c) SMC obtains from sources other than Client who owe no duty of confidentiality to Client; or (d) SMC independently develops.
SMC warrants to Client that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. SMC’s sole and exclusive liability and Client’s sole and exclusive remedy for all claims of defects in the Services will be, in SMC’s discretion, to either: (a) re-perform such Services; or (b) credit or refund the feed paid by Client for such Services. All claims for defects in the Services must be asserted within three (3) months of the date on which the subject Services were completed and any claim not asserted within such period shall be deemed irrevocably waived. SMC MAKES NO WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH AND ALL IMPLIED WARRANTIES ARE DISCLAIMED.
LIMITATION OF LIABILITY
SMC shall in no event be liable for claims for consequential, incidental, indirect, special, or punitive damages arising out of or relating to this Agreement and the Services, including but not limited to, claims based upon loss of use, lost profits or revenue, lost goodwill, work stoppage, environmental damage, loss by reason of shutdown or non-operation, or increased expenses of operation, whether or not the claimed loss or damage is based on contract, tort (including negligence and strict liability) or otherwise.SMC’s maximum liability under or in any way relating to this Agreement shall not exceed the fees paid by Client for Services during the three (3) month period preceding the date of the occurrence of the event giving rise to liability.
The Services are comprised of screenings for detectable levels of specific DNA fragments in samples furnished by Client. Samples containing detectable levels indicate the presence of the particular bacterial/viral/parasitic strain associated with the specific DNA being tested. SMC uses screening methods and equipment that the scientific community considers to be reliable and effective. In performing Services, SMC adheres to a rigorous quality control system that includes screening for false negatives and positives. However, SMC’s tests are not infallible and numerous factors beyond SMC’s control may affect the accuracy of testing, including, but not limited to: (a) poor sample collection by Client; (b) improper handling and transportation of samples prior to their arrival at SMC’s facility; (c) the idiosyncratic presence and absence of the bacterial/viral/parasitic strain being tested for from the gut of a particular animal; and (d) the idiosyncratic presence or absence of the particular DNA fragment being tested for from the genome of a particular bacterial/viral/parasitic colony. Due to such factors, SMC neither represents nor warrants that its tests will conclusively establish the presence or absence of bacterial/viral/parasitic contamination in a given water supply. Client accepts the limitations discussed herein and affirms its understanding that the most reliable way to accurately test for contamination is for Client to increase its sample size and screen for a greater variety of DNA fragments.
TERM AND TERMINATION
This Agreement will commence upon the date that SMC issues its Order Confirmation and will continue in effect until the completion of the Services under the applicable Service Order, unless sooner terminated pursuant to this paragraph. This Agreement may be terminated: (a) without cause, upon 14 days’ prior written notice by either party; or (b) with cause, immediately upon material breach of any term of this Agreement by either party. Client will promptly pay SMC for Services performed before the effective date of termination.
This agreement will be governed by with the laws of the State of Florida without regard to its conflict of law provisions. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in Miami-Dade County, Florida, in any legal suit, action, or proceeding arising out of or based upon this Agreement or the Services.
This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements. This agreement may only be amended by a written document signed by both parties. Neither party may assign this agreement, or any of their rights or obligations under this agreement, without the prior written consent of the other party. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable. No waiver of a condition or nonperformance of an obligation is effective unless it is in writing and signed by the party granting the waiver.
We use security measures to protect against the loss, misuse and alteration of data used by our system.
Confidentiality is the cornerstone of our business. The confidentiality policies that apply to our service programs apply equally to our website.
Personal information including name, location, e-mail address, company affiliation, telephone number, etc. is provided on a voluntary basis only. We use this information to respond to inquiries and requests for further information.
We do not use “cookies” to collect information given involuntarily by visitors to our site, and we do not sell, rent or otherwise transfer received information to other organizations.
Our site contains links to other Internet web sites, and Source Molecular is not responsible for the content or privacy practices of any linked sites.
Sharing and Usage
We will never share, sell, or rent individual personal information with anyone without your advance permission or unless ordered by a court of law. Information submitted to us is only available to employees managing this information for purposes of contacting you or sending you emails based on your request for information and to contracted service providers for purposes of providing services relating to our communications with you.
All of the information on this web site is presented in good faith and believed to be correct. However, Source Molecular makes no representations or warranties as to the completeness or accuracy of this information.
Information is supplied upon the condition that persons receiving it will make their own determination as to its suitability for their use. In no event will Source Molecular be responsible for damages of any nature whatsoever resulting from the use of or reliance upon this information.
NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER NATURE ARE MADE HEREUNDER WITH RESPECT TO INFORMATION OR THE PRODUCT TO WHICH INFORMATION REFERS.