ADS BIOTEC’s standard terms and conditions provided herein along with the Customer’s purchase order for the Service constitutes the entire agreement (the “Agreement”) for the Service of ADS BIOTEC products as generally outlined in ADS BIOTEC’s Support Plan Brochure (http://www.adsbiotec.com/support/) between ADS BIOTEC and the buyer of such Service (“Customer”).
- Payment: Payment terms are net thirty (30) days from the receipt of ADS BIOTEC’s invoice for the relevant Services.
- Prices: Prices are payable in US Dollars, GB Pounds Sterling or Euros and are exclusive of sales, use, excise, import, export, value added, or other similar taxes or governmental charges, including any related penalties and interests however designated, with respect to the provision of the Services, other than taxes based on net income of ADS BIOTEC (collectively “Taxes”). Where applicable, Customer shall provide ADS BIOTEC with a tax exemption certificate acceptable to and considered valid by applicable taxing authorities.
- Late Fees: Customer will be charged late fees of 1.5% of the outstanding balance per month, or the maximum allowed by law, whichever is lower, if Customer fails to make any payments, on any undisputed invoices, when due under this Agreement.
- Service Cancellation: Customer may terminate this Agreement, with or without cause, without any penalty, upon ninety (90) days notice to ADS BIOTEC.
- Service Warranty:
Customer may provide ADS BIOTEC with notice of Services not in accordance with the requirements, or performance specifications herein. ADS BIOTEC will use its best efforts to cure any defects described in such notification within ten (10) business days of receipt of Customer’s notice. In the event the Service issues are not cured within this time period, Customer, at its sole discretion, will either extend the cure period for such defective Services or terminate this Agreement at which time ADS BIOTEC will refund, on a pro-rated basis, payments made under this Agreement.
- Limitation of Liability: EXCEPT FOR ADS BIOTEC’S INDEMNIFICAITON OBLIGATIONS, NEGLIGENCE AND WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR VIOLATION OF APPLICABLE LAW, TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR SUPPLIERS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, GOODWILL OR BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THE SERVICES PROVIDED. Except for ADS BIOTEC’s indemnification obligations, negligence or willful misconduct, breach of confidentiality or violation of applicable law, the liability of ADS BIOTEC relating to any order by Customer shall in no event exceed the total amount of the payments received by ADS BIOTEC relating to such order.
- Indemnity by ADS BIOTEC: ADS BIOTEC agrees to indemnify, defend and hold harmless Customer and its affiliates entities, medical and professional staff, employees, trustees, directors, officers, agents and their respective successors, heirs and assigns (the “Indemnitees”) against any liability, judgment, demand, action, suit, loss, damage, cost and other expense (including but not limited to reasonable attorneys’ fees to consider, advise and defend, and court costs) from and against any suit or claim made or proceedings (collectively, “Claims”) brought against Customer arising directly or indirectly out of (i) ADS BIOTEC’s or its employees’ or agents’ negligence, recklessness, willful misconduct; (ii) breach of any term of this Agreement by ADS BIOTEC; (iii) injury to person (including death) or damage to property caused by ADS BIOTEC, its employees or agents; (iv) an assertion or allegation that the Products constitute an infringement of any patent, copyright, trademark, trade dress, or any other intellectual property right; or (v) violation of law by ADS BIOTEC. Customer shall promptly notify and provide reasonable cooperation to ADS BIOTEC in the defense of any Claim for which indemnification is sought at ADS BIOTEC’s expense. ADS BIOTEC shall have the right to control the defense of any Claims and to settle Claims; provided, however, that ADS BIOTEC shall make no admission of fault or wrongdoing or other statement reflecting negatively on Customer, without Customer’s prior express written consent.
- Dispute Resolution and Governing Law: This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of Nebraska, U.S.A., without regard to provisions on the conflicts of laws. Before either party may initiate any legal action or proceeding, such party must notify the other party in writing of the dispute or controversy and make one or more of its executives available to meet with executives of the other party to attempt in good faith to resolve the dispute or controversy. If the dispute or controversy has not been resolved thirty (30) days after such notice is given, either party may initiate a legal action or proceeding in accordance with this Section, as applicable.
- Assignment: ADS BIOTEC will not assign this Agreement or any part thereof to any third party without Customer’s prior written consent (which is in its sole discretion to grant or withhold). Any permitted assignee will assume all obligations of ADS BIOTEC under this Agreement. Assignment will not relieve ADS BIOTEC of responsibility for the performance of any accrued obligation.
- Modifications; Waiver: Any variance of these terms by Customer is not valid unless it is in writing and signed by an officer or other authorized representative of ADS BIOTEC. Except as otherwise set forth in this Agreement, no failure by ADS BIOTEC to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege by ADS BIOTEC hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege
- Force Majeure: Neither party shall be in default by reason of any failure or delay in performance of its obligations (other than Customer’s payment obligations hereunder) if such failure or delay arises out of causes beyond the control (whether caused directly or indirectly) of such party (“Force Majeure”). Such causes may include, but are not restricted to: Acts of God or of the public enemy; acts of government (including specifically but not exclusively any orders, rules, or regulations issued by any official or agency of any such government or changes in applicable laws or regulations) in either its sovereign or contractual capacity; riots; fires; earthquake; floods; epidemics; quarantine restrictions; embargoes; strikes; labor difficulties (excluding ADS BIOTEC’s own workforce); unusually severe weather; shortages in labor, fuel, materials and supplies; denial of service attacks, failure of internet or wireless service, or any combination thereof.
- Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Confidentiality: ADS BIOTEC agrees to keep absolutely confidential during the Term of this Agreement and after termination of this Agreement all proprietary and confidential information of Customer which may arise in the course of providing Services.
- Insurance: ADS BIOTEC shall procure and maintain general liability coverage with a minimum policy limits of $1,000,000 per occurrence and $2,000,000 annual aggregate. Such coverage shall be self-insured or underwritten by a reputable insurance organization authorized to do business in the State of where Service is being provided. Upon request, ADS BIOTEC will provide proof of its liability coverage to Customer.
- Compliance with Law: ADS BIOTEC shall comply with all applicable federal, state, and local laws, rules, and regulations relating to it, including but not limited to the Health Insurance Portability and Accountability Act and applicable standards of The Joint Commission, and shall operate so that all licenses, permits, consents, and approvals are obtained and maintained from all governmental agencies that have jurisdiction over it, except where the failure to so comply or so operate does not have a material adverse effect on any of the other parties.
- Publicity: ADS BIOTEC will not use Customer‘s name, trademark, service mark or logo in any publicity, advertising or announcement, without Customer’s prior written consent.
- Debarment: ADS BIOTEC hereby certifies that neither it nor any of its employees or agents performing any Service under this Agreement are (1) presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any program sponsored by a federal, state, or local department or agency; or (2) under investigation for a crime or otherwise engaged in conduct for which an entity or individual can be debarred by any federal, state, or local department or agency. ADS BIOTEC shall immediately notify the other party upon any inquiry or commencement of any such proceeding, and upon such notice, Customer shall have the right to immediately terminate this Agreement.
- Independent Contractor: ADS BIOTEC and Customer are independently contracting parties. Nothing in this Agreement shall constitute, be construed, or create an employment or agency relationship, a partnership, or a joint venture among the parties, nor does this Agreement create an equity or ownership interest by any party in any party.
- Compliance with Customer’s Policies: If ADS BIOTEC will be on Customer’s premises when performing the Services under this Agreement, ADS BIOTEC agrees to be supervised by Customer’s personnel and to comply with Customer’s reasonable security policies, procedures, and practices, including but not limited to background checks and immunizations, if required.
- Subcontractors: In the event that ADS BIOTEC subcontracts any duty under this Agreement to any third party, ADS BIOTEC will cause each subcontractor to comply with the terms and conditions hereof. ADS BIOTEC agrees that Customer will have no direct responsibility for payment of any kind to such subcontractor and no liability for amounts owing by ADS BIOTEC to such subcontractor. ADS BIOTEC will remain responsible and liable for the acts or omissions of such subcontractor activities as if such activities had been performed by ADS BIOTEC.
- Notices: Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address as set forth herein. Either party may change its address for notices by notice to the other party given in accordance with this section. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
ADS BIOTEC INC
Attn: Legal Department
7409 Irvington Road
Omaha, NE 68122 USA
DOC ID 482176 rev 0, 5/2022