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TERMS AND CONDITIONS OF

CEMVITA FACTORY, INC. TECHNICAL SERVICES

TERMS AND CONDITIONS OF
CEMVITA FACTORY, INC. TECHNICAL SERVICES

These terms and conditions (“Terms”) as described below shall apply to all contracts between Cemvita Factory, Inc. (“Contractor”) and Customer. Contractor and Customer may be hereinafter referred to individually as a “Party” and collectively as the “Parties.” These Terms are intended to govern and supplement the relationship between the Parties established in the Project Proposal. Any capitalized, yet undefined terms herein shall have the meaning(s) ascribed to them in the Project Proposal.

WHEREAS, Customer desires to evaluate and explore new technologies that may improve or enhance its business operations; and

WHEREAS, Contractor is a biotechnology company that, among other things, is developing new services and technologies for CO2 utilization and is seeking assistance from Customer to evaluate and implement such new services and technologies with the ultimate goal of demonstrating them for commercial use;

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

  1. SERVICES.
  1. CONTRACTOR WILL PERFORM FOR CUSTOMER THE SERVICES AND PROVIDE FOR CUSTOMER THE DELIVERABLES, IF ANY, DESCRIBED IN THE PROJECT PROPOSAL (COLLECTIVELY, THE “SERVICES”) ON THE TERMS AND CONDITIONS SET FORTH HEREIN.
  2. IF THERE IS ANY DISCREPANCY BETWEEN THE PROJECT PROPOSAL AND THESE TERMS, THE PROJECT PROPOSAL SHALL CONTROL.
  3. CONTRACTOR AND CUSTOMER MAY ENTER INTO MULTIPLE PROJECT PROPOSALS FOR VARYING SERVICES, EACH (ALONG WITH THESE TERMS) TO BE CONSTRUED AS SEPARATE, DISTINCT AGREEMENTS BETWEEN THE PARTIES.
  4. BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE EXPERIMENTAL IN NATURE, ARE UNDER DEVELOPMENT, AND MAY NOT RESULT IN A VIABLE COMMERCIAL SERVICE. THEREFORE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONTRACTOR DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS AND/OR WARRANTIES OF QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES. CONTRACTOR DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY SERVICES PROVIDED TO CUSTOMER BY CONTRACTOR. CONTRACTOR DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE.
  5. CUSTOMER WARRANTS THAT IT WILL TIMELY PROVIDE TO CONTRACTOR AT NO COST ANY DATA, MODELS, INFORMATION, SAMPLES, OR OTHER MATERIALS REASONABLY IDENTIFIED BY CONTRACTOR AS REQUIRED TO CARRY OUT THE SERVICES AND THAT THE AFOREMENTIONED SHALL BE REASONABLY ACCURATE, COMPLETE, AND ERROR FREE. CUSTOMER RECOGNIZES THE NECESSITY OF ACCURATE, COMPLETE, AND ERROR FREE INFORMATION FOR CONTRACTOR TO PROVIDE THE BEST QUALITY SERVICES. CUSTOMER LIKEWISE AGREES TO BE REASONABLY AVAILABLE FOR FEEDBACK TO CONTRACTOR AND TO RESPOND TO CONTRACTOR COMMUNICATIONS WITHIN A REASONABLE PERIOD OF TIME.

  1. COMPENSATION.
  1. CUSTOMER WILL PAY CONTRACTOR FOR PERFORMING THE SERVICES IN AN AMOUNT DESCRIBED IN THE PROJECT PROPOSAL (THE “SERVICE FEES”).
  2. FIFTY PERCENT (50%) OF THE SERVICE FEES SHALL BE DUE AND PAID UP-FRONT, UPON ACCEPTANCE OF THE PROJECT PROPOSAL BY CUSTOMER. THE REMAINING FIFTY PERCENT (50%) OF THE SERVICE FEES SHALL BE DUE AND PAID BY CUSTOMER UPON COMPLETION OF THE SERVICES (BY CONTRACTOR’S SOLE AND REASONABLE JUDGMENT) AND WILL BE INVOICED DIRECTLY BY CONTRACTOR. ONCE INVOICED, THE FINAL PORTION OF THE SERVICE FEES SHALL BE PAID BY CUSTOMER WITHIN THIRTY (30) DAYS. ANY AMOUNTS DUE TO CONTRACTOR UNDER THESE TERMS NOT RECEIVED BY THE DATE DUE WILL BE SUBJECT TO A SERVICE CHARGE OF 1.5% PER MONTH UNTIL PAID IN FULL, OR THE MAXIMUM CHARGE PERMITTED BY LAW, WHICHEVER IS LESS.

  1. CONFIDENTIALITY AND NON-DISCLOSURE.
  1. “CONFIDENTIAL INFORMATION” MEANS ANY PROPRIETARY OR CONFIDENTIAL INFORMATION OR MATERIAL OF EITHER PARTY THAT IS DISCLOSED TO THE OTHER PARTY, EITHER DIRECTLY OR INDIRECTLY, IN WRITING, ORALLY OR BY INSPECTION OF TANGIBLE OBJECTS (INCLUDING WITHOUT LIMITATION DOCUMENTS, PROTOTYPES, FORMULAS, PLANS, SYSTEMS, TECHNOLOGIES, KNOW-HOW, CUSTOMER LISTS, SAMPLES, AND INTELLECTUAL PROPERTY), WHETHER OR NOT SUCH INFORMATION IS DESIGNATED OR IDENTIFIED AS “CONFIDENTIAL,” “PROPRIETARY,” OR SOME SIMILAR DESIGNATION. CONFIDENTIAL INFORMATION WILL NOT, HOWEVER, INCLUDE ANY INFORMATION THAT THE RECEIVING PARTY CAN DEMONSTRATE: (A) WAS PUBLICLY KNOWN AND MADE GENERALLY AVAILABLE IN THE PUBLIC DOMAIN PRIOR TO THE TIME OF DISCLOSURE BY THE DISCLOSING PARTY; (B) BECOMES PUBLICLY KNOWN AND MADE GENERALLY AVAILABLE AFTER DISCLOSURE BY THE DISCLOSING PARTY TO THE RECEIVING PARTY THROUGH NO ACT OR OMISSION OF THE RECEIVING PARTY; (C) IS ALREADY IN THE POSSESSION OF THE RECEIVING PARTY AT THE TIME OF DISCLOSURE BY THE DISCLOSING PARTY; (D) IS OBTAINED BY THE RECEIVING PARTY FROM A THIRD PARTY WITHOUT A BREACH OF THE THIRD PARTY’S OBLIGATIONS OF CONFIDENTIALITY; OR (E) IS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY WITHOUT USE OF OR REFERENCE TO THE DISCLOSING PARTY’S CONFIDENTIAL INFORMATION, AS SHOWN BY DOCUMENTS AND OTHER COMPETENT EVIDENCE IN THE RECEIVING PARTY’S POSSESSION.
  2. EXCEPT AS PROVIDED IN SECTION 6.3 BELOW, UPON TERMINATION OF THE SERVICES, EACH PARTY WILL PROMPTLY RETURN, OR IF REQUESTED BY THE DISCLOSING PARTY, CONFIRM DESTRUCTION OF, THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY THAT IS IN ITS POSSESSION AT THE TIME OF TERMINATION. HOWEVER, CONTRACTOR WILL HAVE THE RIGHT TO USE AND EXPLOIT RESIDUALS FOR ANY PURPOSE AFTER THE RETURN OF CUSTOMER’S CONFIDENTIAL INFORMATION. “RESIDUALS” MEANS IDEAS, INFORMATION, AND UNDERSTANDINGS RETAINED IN THE MEMORY OF CONTRACTOR’S EXECUTIVES, EMPLOYEES, CONTRACTORS, AND/OR AGENTS BECAUSE OF THEIR REVIEW, EVALUATION, AND TESTING OF THE CONFIDENTIAL INFORMATION OF CUSTOMER AFTER ITS RETURN TO CUSTOMER.  
  3. NEITHER PARTY WILL DISCLOSE ANY CONFIDENTIAL INFORMATION OF THE OTHER PARTY TO THIRD PARTIES. LIKEWISE, NEITHER PARTY WILL DISCLOSE ANY CONFIDENTIAL INFORMATION OF THE OTHER PARTY TO ITS EMPLOYEES, CONTRACTORS, OR AGENTS, EXCEPT AS REASONABLY NECESSARY IN ORDER TO PERFORM THE RECEIVING PARTY’S OBLIGATIONS UNDER THESE TERMS, AND ONLY IF SAID INDIVIDUALS HAVE EXECUTED A WRITTEN CONFIDENTIALITY AGREEMENT CONTAINING TERMS NO LESS RESTRICTIVE THAN THOSE OF THIS SECTION 3. IF A PARTY IS REQUIRED BY LAW TO DISCLOSE THE OTHER PARTY’S CONFIDENTIAL INFORMATION, THAT PARTY MUST GIVE THE OTHER PARTY PROMPT WRITTEN NOTICE OF THE REQUIREMENT PRIOR TO SUCH DISCLOSURE SO THE DISCLOSING PARTY MAY SEEK A PROTECTIVE ORDER OR OTHER PROTECTIVE MEASURE(S) AS IT WISHES.
  4. NEITHER PARTY WILL REVERSE ENGINEER, DISASSEMBLE, OR DECOMPILE ANY PROTOTYPES, MATERIAL, SAMPLES, SOFTWARE, OR TANGIBLE OBJECTS THAT EMBODY THE OTHER PARTY’S CONFIDENTIAL INFORMATION AND THAT ARE PROVIDED TO THE PARTY. NEITHER PARTY MAY USE THE OTHER PARTY’S CONFIDENTIAL INFORMATION FOR ANY PURPOSE OTHER THAN THE PROVISION OF SERVICES UNDER THESE TERMS.
  5. EACH PARTY WILL TAKE REASONABLE MEASURES TO PROTECT THE SECRECY OF AND AVOID DISCLOSURE AND UNAUTHORIZED USE OF THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY. WITHOUT LIMITING THE FOREGOING, EACH PARTY WILL TAKE AT LEAST THOSE MEASURES THAT IT TAKES TO PROTECT ITS OWN MOST HIGHLY CONFIDENTIAL INFORMATION.
  6. WITH THE CONSENT FROM THE OTHER PARTY, WHICH WILL NOT BE UNREASONABLY BE WITHHELD, BOTH PARTIES SHALL HAVE THE RIGHT TO PUBLICIZE THROUGH PRESS RELEASES, PUBLIC ANNOUNCEMENTS, AND OTHERWISE, THE EXISTENCE AND GENERAL TERMS OF THE SERVICES AND THESE TERMS (WITHOUT DISCLOSING THE SERVICE FEES OR CONFIDENTIAL INFORMATION), THE NAMES OF THE PARTIES, AND THE TECHNICAL OUTCOMES OF THE SERVICES. CONTRACTOR SHALL ALSO HAVE THE RIGHT TO DISCLOSE TO POTENTIAL INVESTORS THE EXISTENCE AND TERMS OF THE SERVICES AND THESE TERMS (INCLUDING THE SERVICE FEES), THE NAMES OF THE PARTIES, THE TECHNICAL OUTCOMES OF THE SERVICES, AND ANY OTHER MATTERS DETERMINED BY THE CONTRACTOR TO BE REASONABLE NECESSARY FOR FUNDING DILIGENCE.

  1. OWNERSHIP OF INTELLECTUAL PROPERTY; LICENSE TO USE; RIGHT OF FIRST REFUSAL.
  1. FOR THE PURPOSES OF  THESE TERMS, “INTELLECTUAL PROPERTY” MEANS ANYTHING THAT IS, HAS BEEN, OR IS CAPABLE OF BEING PATENTED, PROTECTED AS A TRADE SECRET, PROTECTED BY COPYRIGHT LAW, PROTECTED BY TRADEMARK LAW, OR PROTECTED BY OR UNDER ANY OTHER U.S. OR FOREIGN LAWS OR STATUTES RELATING TO INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS, INCLUDING WITHOUT LIMITATION PATENTS, TRADEMARKS, SERVICE MARKS, TRADE NAMES, COPYRIGHTS, TRADE SECRETS, WORKS OF AUTHORSHIP, MORAL RIGHTS OF AUTHORSHIP, KNOW-HOW, SCIENTIFIC OR MATHEMATICAL OUTCOMES, SCIENTIFIC OR MATHEMATICAL IMPROVEMENTS, TECHNOLOGIES, AND CONFIDENTIAL INFORMATION, INCLUDING ANY APPLICATIONS FOR OR REGISTRATIONS OF THE FOREGOING.
  2. ANY INTELLECTUAL PROPERTY RELATING TO, REFERRING TO, COMPRISING, OR CLAIMING, TECHNOLOGIES RELATING TO THE CONTRACTOR FIELD DEVELOPED DURING THE COURSE OF THE SERVICES (“CONTRACTOR IP”) SHALL BE THE SOLE AND EXCLUSIVE PROPERTY OF CONTRACTOR. TO THE EXTENT THAT CUSTOMER, ITS EMPLOYEES, AGENTS, OR CONTRACTORS, CONCEIVES, DEVELOPS, INVENTS, OR CONTRIBUTES TO ANY CONTRACTOR IP, CUSTOMER HEREBY IRREVOCABLY ASSIGNS, AND AGREES TO ASSIGN, TO CONTRACTOR THE CUSTOMER’S ENTIRE RIGHT, TITLE AND INTEREST IN, AND TO, SUCH CONTRACTOR IP. CONTRACTOR SHALL HAVE THE RIGHT TO, IN ITS SOLE JUDGMENT, FILE PATENT, TRADEMARK, OR COPYRIGHT APPLICATIONS, WHETHER IN THE UNITED STATES AND/OR OTHER JURISDICTION, WITH RESPECT TO SUCH CONTRACTOR IP IN ITS OWN NAME AND AT ITS OWN EXPENSE, AND TAKE SUCH OTHER STEPS AS ARE NECESSARY, IN THE SOLE JUDGMENT OF CONTRACTOR, TO PROTECT ITS RIGHTS IN SUCH CONTRACTOR IP. UPON THE REASONABLE REQUEST OF CONTRACTOR, CUSTOMER AGREES THAT IT WILL TAKE ALL REASONABLE ACTIONS, EXECUTE ALL REASONABLE DOCUMENTS, AND CAUSE ITS EMPLOYEES, AGENTS, AND CONTRACTORS TO TAKE ALL ACTIONS AND EXECUTE ALL DOCUMENTS AS ARE REASONABLY NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS OF THIS SECTION 4.2 OR TO ASSIST CONTRACTOR IN THE PREPARATION, FILING, PROSECUTION, DEFENSE, AND ENFORCEMENT OF THE CONTRACTOR IP, OR SECURING SUCH PROTECTION REFERENCED IN THIS SECTION 4.2. OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 4.4 HEREIN, NO LICENSES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, ARE PROVIDED TO CUSTOMER IN THE CONTRACTOR IP. AS USED HEREIN, “CONTRACTOR FIELD” MEANS 1) SYNTHETIC BIOLOGY AND BIOMIMETIC TECHNIQUES FOR DEVELOPMENT OF MICROBES AND ENZYMES, INCLUDING BIOENGINEERING OF MICROORGANISMS AND CELL-FREE ENZYMATIC SYSTEMS, 2) MICROORGANISMS AND ENZYMES FOR CONVERTING CO2 TO OTHER MOLECULES, INCLUDING MOLECULES USED IN CO2 CONVERSION, BIOREMEDIATION, AND PHYTOREMEDIATION OPERATIONS, AND 3) METHODS FOR USING BIO-ENGINEERED MICROORGANISMS OR ENZYMES FOR PRODUCTION OF MOLECULES.
  3. FOR THE PURPOSES OF THESE TERMS, “BACKGROUND TECHNOLOGY” MEANS ALL INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION DEVELOPED BY, OR IN THE POSSESSION OF, CONTRACTOR PRIOR TO THE EFFECTIVE DATE. CONTRACTOR IS THE SOLE AND EXCLUSIVE OWNER OF ALL BACKGROUND TECHNOLOGY, INCLUDING WITHOUT LIMITATION ANY BACKGROUND TECHNOLOGY USED IN PERFORMANCE OF THE SERVICES.  OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 4.4 HEREIN, NO LICENSES, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, ARE PROVIDED TO CUSTOMER IN THE BACKGROUND TECHNOLOGY.
  4. FOR THE SOLE PURPOSE OF TECHNICAL EVALUATION, AS CONTEMPLATED HEREIN BY THE PARTIES, CONTRACTOR HEREBY GRANTS TO COMPANY A LIMITED, NON-COMMERCIAL, NON-EXCLUSIVE, ROYALTY-FREE LICENSE DURING THE CONSIDERATION PERIOD TO APPLICABLE BACKGROUND TECHNOLOGY AND CONTRACTOR IP NECESSARY FOR, AND RELEVANT TO, SAID TECHNICAL EVALUATION (THE “LIMITED LICENSE”). THE LIMITED LICENSE IS EXPRESSLY LIMITED TO COMPANY’S EVALUATION OF THE EFFECTIVENESS AND VIABILITY OF THE TECHNOLOGY CONTEMPLATED WITHIN THE APPLICABLE PROJECT PROPOSAL, AND WILL TERMINATE AUTOMATICALLY AT THE END OF THE CONSIDERATION PERIOD. THE LIMITED LICENSE MAY NOT BE ASSIGNED, SUBLICENSED, OR OTHERWISE TRANSFERRED TO ANY THIRD PARTY, IN ANY WAY, WITHOUT CONTRACTOR’S PRIOR WRITTEN CONSENT, PROVIDED, HOWEVER, UPON CONTRACTOR’S WRITTEN CONSENT, COMPANY MAY PERMIT THIRD PARTIES TO EXPLOIT SUCH LIMITED LICENSE SOLELY UPON COMPANY’S OR ITS AFFILIATES’ BEHALF FOR THE PURPOSE OF SAID TECHNICAL EVALUATION, AND ONLY IF SAID THIRD PARTIES ARE BOUND BY OBLIGATIONS OF CONFIDENTIALITY AT LEAST AS RESTRICTIVE AS THOSE SET FORTH IN THIS AGREEMENT.
  5. PROVIDED A PROJECT PROPOSAL CONTAINS A CONSIDERATION PERIOD, CONTRACTOR SHALL NOT SELL OR LICENSE AN OFFERING WITHIN THE FIELD OF WORK (AS DEFINED IN THE APPLICABLE PROJECT PROPOSAL) TO A THIRD-PARTY OFFEREE DURING SAID CONSIDERATION PERIOD WITHOUT FIRST OFFERING TO SELL SAME AT SUCH PRICE AND UPON THE SAME TERMS AND CONDITIONS AS CONTAINED IN THE THIRD-PARTY OFFER. FOR CLARITY, NOTHING IN THE PRESENT CLAUSE PREVENTS CONTRACTOR FROM OFFERING FOR SALE OR LICENSE SAID OFFERING. IF NO FIELD OF WORK IS DEFINED, IT SHALL MEAN SERVICES THE SAME AS THOSE PROVIDED BY CONTRACTOR TO CUSTOMER IN THE PROJECT PROPOSAL. IF NO CONSIDERATION PERIOD IS DEFINED WITHIN THE PROJECT PROPOSAL, THEN IT WILL BE DEFINED AS A PERIOD OF SIX MONTHS AFTER THE DELIVERY OF THE TECHNICAL REPORT DETAILING THE EXPERIMENTAL RESULTS. AS USED HEREIN, “OFFERING” MEANS CONTRACTOR’S INTELLECTUAL PROPERTY, SERVICES, OR ANY PRODUCT COLLECTIVELY WITHIN THE FIELD OF WORK OF AN APPLICABLE PROJECT PROPOSAL. THIS SECTION 4.5 IS TO BE CONSTRUED AS STRICTLY AS POSSIBLE IN FAVOR OF CONTRACTOR SO AS NOT TO IMPEDE CONTRACTOR’S ABILITY TO OPERATE, CONDUCT BUSINESS, AND PERFORM SERVICES FOR ENTITIES OTHER THAN CUSTOMER.

  1. REPORTS; PUBLICATIONS.
  1. CONTRACTOR WILL KEEP CUSTOMER ORALLY UP-TO-DATE AS TO CONTRACTOR’S PROGRESS IN PERFORMING THE SERVICES AND CONTRACTOR WILL, WHEN REASONABLY REQUESTED BY CUSTOMER, PREPARE WRITTEN REPORTS WITH RESPECT TO THE PROGRESS. IT IS UNDERSTOOD THAT ANY TIME REQUIRED IN THE PREPARATION OF THE WRITTEN REPORTS WILL BE CONSIDERED TIME DEVOTED TO THE PERFORMANCE OF THE SERVICES.
  2. CUSTOMER SHALL NOT ISSUE OR CAUSE THE PUBLICATION OF ANY ACADEMIC OR PROFESSIONAL PAPERS, ARTICLES, REPORTS, PUBLICATIONS, SEMINARS, PRESENTATIONS, OR THE LIKE (COLLECTIVELY, “PUBLICATIONS”) RELATING TO THE EXISTENCE OF A PROJECT PROPOSAL OR THE SUBJECT MATTER THEREOF, WITHOUT THE PRIOR WRITTEN APPROVAL OF CONTRACTOR AT CONTRACTOR’S SOLE DISCRETION. CUSTOMER SHALL PROVIDE ADVANCE NOTICE TO CONTRACTOR OF ANY PUBLICATIONS CONTEMPLATED BY, OR ON BEHALF OF, CUSTOMER AND/OR CUSTOMER’S EMPLOYEES, AGENTS, OR AFFILIATES, REGARDING CONTRACTOR IP. SUCH ADVANCE NOTICE SHALL BE GIVEN WITH ENOUGH TIME TO REASONABLY ALLOW CONTRACTOR TO REVIEW SAID PUBLICATIONS AS THEY RELATE TO CONTRACTOR CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY, AND TO DECIDE WHETHER OR NOT TO PARTICIPATE IN THE PUBLICATIONS.  NOTWITHSTANDING THE FOREGOING, ANY PUBLICATIONS MADE BY OR ON BEHALF OF CUSTOMER AND/OR CUSTOMER’S EMPLOYEES, AGENTS, OR AFFILIATES, REGARDING CONTRACTOR IP SHALL INCLUDE PROPER REFERENCES AND CREDITS TO CONTRACTOR.

  1. TERM AND TERMINATION; SURVIVAL.
  1. THESE TERMS WILL COMMENCE ON THE EFFECTIVE DATE (AS DEFINED IN AN APPLICABLE PROJECT PROPOSAL) AND CONTINUE FOR THE TERM AS PROVIDED IN THE PROJECT PROPOSAL, UNLESS TERMINATED EARLIER PURSUANT TO SECTION 6.2, BELOW.
  2. EITHER PARTY MAY TERMINATE THESE TERMS FOR CONVENIENCE UPON THIRTY (30) DAYS’ WRITTEN NOTICE TO THE OTHER PARTY; HOWEVER, EITHER PARTY MAY TERMINATE THESE TERMS IMMEDIATELY AND WITHOUT PRIOR NOTICE TO THE OTHER PARTY IF THE TERMINATING PARTY BELIEVES SUCH IMMEDIATE TERMINATION IS NECESSARY TO PROTECT ITS INTELLECTUAL PROPERTY, CUSTOMERS, EMPLOYEES, CONTRACTORS, OR AGENTS. TERMINATION OF THESE TERMS WILL ALSO TERMINATE THE SERVICES. UPON EARLY TERMINATION FOR ANY REASON, ALL REMAINING SERVICE FEES SHALL BECOME IMMEDIATELY DUE AND PAYABLE BY CUSTOMER (SUCH REMAINING SERVICE FEES TO BE REDUCED PROPORTIONATELY BY THE LENGTH OF TIME REMAINING IN THE TERM; HOWEVER, IN NO EVENT WILL CUSTOMER BE REFUNDED THE FIRST FIFTY PERCENT (50%) PAYMENT OF SERVICE FEES IF THESE TERMS ARE TERMINATED EARLY BY CUSTOMER).
  3. UPON TERMINATION, CONTRACTOR MAY, IN ITS SOLE DISCRETION, RETAIN ANY SAMPLES PROVIDED BY THE CUSTOMER AS PART OF THE SERVICES, BUT CONTRACTOR IS NOT OBLIGATED TO MAINTAIN SUCH SAMPLES AND WILL HAVE NO LIABILITY FOR THE LOSS OR DESTRUCTION OF SAMPLES.
  4. SECTIONS 1.4, 3, 4, 6, 7, AND 8 WILL SURVIVE THE EXPIRATION, CANCELLATION OR TERMINATION OF THESE TERMS (ALONG WITH ALL OTHER PROVISIONS THAT SURVIVE BY THEIR EXPRESS TERMS, OR WOULD NATURALLY BE EXPECTED TO DO SO BASED ON THEIR SUBJECT MATTER).

  1. LIMITATION OF REMEDIES AND DAMAGES.
  1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, CONTRACTOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF CONTRACTOR IS AWARE OF THE LIKELIHOOD OF THESE DAMAGES OCCURRING.
  2. UNDER NO CIRCUMSTANCES WILL CONTRACTOR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CONTRACTOR UNDER THESE TERMS DURING THE SIX (6) MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM.
  3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CONTRACTOR TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF ANY WARRANTIES IN THESE TERMS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

  1. GENERAL TERMS.
  1. THESE TERMS MAY BE ASSIGNED BY EITHER PARTY UPON PRIOR WRITTEN NOTICE TO THE OTHER PARTY.
  2. THE RELATIONSHIP OF THE PARTIES HERETO IS THAT OF INDEPENDENT CONTRACTORS. NOTHING IN THESE TERMS, AND NO COURSE OF DEALING BETWEEN THE PARTIES, SHALL BE CONSTRUED TO CREATE OR IMPLY AN EMPLOYMENT OR AGENCY RELATIONSHIP OR A PARTNERSHIP OR JOINT VENTURE RELATIONSHIP BETWEEN THE PARTIES OR BETWEEN ONE PARTY AND THE OTHER PARTY’S EMPLOYEES OR AGENTS. EACH OF THE PARTIES IS AN INDEPENDENT CONTRACTOR AND NEITHER PARTY HAS THE AUTHORITY TO BIND OR CONTRACT ANY OBLIGATION IN THE NAME OF OR ON ACCOUNT OF THE OTHER PARTY OR TO INCUR ANY LIABILITY OR MAKE ANY STATEMENTS, REPRESENTATIONS, WARRANTIES OR COMMITMENTS ON BEHALF OF THE OTHER PARTY, OR OTHERWISE ACT ON BEHALF OF THE OTHER.
  3. THESE TERMS WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREIN. ANY SUIT TO ENFORCE ANY PROVISION OF THESE TERMS, OR ANY RIGHT, REMEDY OR OTHER MATTER, WILL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN HARRIS COUNTY, TEXAS.
  4. ANY DISPUTE OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INTERPRETATION, CONSTRUCTION, PERFORMANCE, OR BREACH OF THESE TERMS WILL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE RULES THEN IN EFFECT OF THE AMERICAN ARBITRATION ASSOCIATION AND WILL BE HELD IN HOUSTON, TEXAS. THE ARBITRATOR MAY GRANT INJUNCTIONS OR OTHER RELIEF IN THE DISPUTE OR CONTROVERSY. THE DECISION OF THE ARBITRATOR WILL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE ENTERED ON THE ARBITRATOR’S DECISION IN ANY COURT OF COMPETENT JURISDICTION. NOTWITHSTANDING THE ABOVE, THE PARTIES MAY SEEK INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION FOR A BREACH OF SECTIONS 3 OR 4 OF THESE TERMS WITHOUT THE NECESSITY OF POSTING A BOND.
  5. THESE TERMS ARE IN ADDITION TO, AND DO NOT LIMIT, ANY RIGHTS THAT EITHER PARTY MAY HAVE UNDER TRADE SECRET, COPYRIGHT, PATENT OR OTHER LAWS THAT MAY APPLY TO THE SUBJECT MATTER OF THESE TERMS BOTH DURING AND AFTER THE TERM. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE ARBITRATION PROVISION OF SECTION 8.4 HEREIN DOES NOT APPLY TO PATENT INFRINGEMENT, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, AND TRADE SECRET MISAPPROPRIATION ACTIONS.
  6. CUSTOMER WILL NOT, DURING THE TERM AND FOR A PERIOD OF ONE (1) YEAR THEREAFTER, DIRECTLY OR INDIRECTLY, FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF OTHERS, URGE, INDUCE, ENTICE, OR IN ANY MANNER WHATSOEVER SOLICIT ANY EMPLOYEE OF CONTRACTOR DIRECTLY INVOLVED IN SERVICES TO LEAVE THE EMPLOYMENT OF CONTRACTOR. FOR PURPOSES OF THE FOREGOING, URGE, INDUCE, ENTICE OR SOLICIT SHALL NOT BE DEEMED TO MEAN: (A) CIRCUMSTANCES WHERE AN EMPLOYEE OF CONTRACTOR INITIATES FIRST CONTACT WITH CUSTOMER WITH REGARD TO POSSIBLE EMPLOYMENT; OR (B) GENERAL SOLICITATIONS OF EMPLOYMENT NOT SPECIFICALLY TARGETED AT EMPLOYEES OF CONTRACTOR, INCLUDING RESPONSES TO GENERAL ADVERTISEMENTS.
  7. THESE TERMS AND THE PROJECT PROPOSAL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR AGREEMENT, REPRESENTATIONS, PROMISES, OR COMMUNICATIONS BETWEEN THE PARTIES, WHETHER WRITTEN, ORAL, ELECTRONIC OR OTHERWISE. NO CHANGE, MODIFICATION, AMENDMENT, OR ADDITION OF OR TO THESE TERMS OR ANY PART THEREOF SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AUTHORIZED REPRESENTATIVES OF THE PARTIES.
  8. NO WAIVER OF ANY TERM OR RIGHT IN THESE TERMS SHALL BE EFFECTIVE UNLESS IN WRITING, SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE WAIVING PARTY. THE FAILURE OF EITHER PARTY TO ENFORCE ANY PROVISION OF THESE TERMS SHALL NOT BE CONSTRUED AS A WAIVER OR MODIFICATION OF SUCH PROVISION, OR IMPAIRMENT OF ITS RIGHT TO ENFORCE SUCH PROVISION OR ANY OTHER PROVISION OF THESE TERMS THEREAFTER.
  9. EACH OF THE PARTIES HEREBY REPRESENTS AND WARRANTS THAT IT HAS THE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THESE TERMS, THAT THESE TERMS HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART OF SUCH PARTY, THAT THESE TERMS CONSTITUTE A LEGAL, VALID, AND BINDING OBLIGATION OF EACH SUCH PARTY AND THAT THE EXECUTION, DELIVERY AND PERFORMANCE OF THESE TERMS BY SUCH PARTY DOES NOT CONTRAVENE OR CONFLICT WITH ANY PROVISION OF LAW OR OF ITS CHARTER OR BYLAWS OR ANY MATERIAL AGREEMENT, INSTRUMENT, OR ORDER BINDING ON SUCH PARTY.
  10. IF ANY TERM OF THESE TERMS IS TO ANY EXTENT ILLEGAL, OTHERWISE INVALID, OR INCAPABLE OF BEING ENFORCED, SUCH TERM SHALL BE EXCLUDED TO THE EXTENT OF SUCH INVALIDITY OR UNENFORCEABILITY; ALL OTHER TERMS HEREOF SHALL REMAIN IN FULL FORCE AND EFFECT; AND, TO THE EXTENT PERMITTED AND POSSIBLE, THE INVALID OR UNENFORCEABLE TERM SHALL BE DEEMED REPLACED BY A TERM THAT IS VALID AND ENFORCEABLE AND THAT COMES CLOSEST TO EXPRESSING THE INTENTION OF SUCH INVALID OR UNENFORCEABLE TERM. IF APPLICATION OF THIS SEVERABILITY PROVISION SHOULD MATERIALLY AND ADVERSELY AFFECT THE ECONOMIC SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTY ADVERSELY IMPACTED SHALL BE ENTITLED TO COMPENSATION FOR SUCH ADVERSE IMPACT, PROVIDED THE REASON FOR THE INVALIDITY OR UNENFORCEABILITY OF A TERM IS NOT DUE TO SERIOUS MISCONDUCT BY THE PARTY SEEKING SUCH COMPENSATION.