1. Definitions. Any capitalized terms not defined in these Terms of Sale will have the meaning attributed to them in the documents to which these Terms of Sale are attached. (a) Buyer means the purchaser of Services pursuant to the Contract (all as defined below). (b) Seller means RhizeBio Inc., a Delaware corporation with an office at 235 Tuckaseege Road Suite A, Mount Holly, NC 28120. (c) Services means any services provided to Buyer by Seller in connection with the Contract.
2. Offer and Acceptance. If these Terms of Sale are attached to or incorporated by reference in a proposal or form of agreement (the “Proposal”), these Terms of Sale together with the Proposal constitute an offer by Seller to provide the Products and perform the Services as defined in the Proposal in accordance with and subject to the terms herein. No Proposal is binding on Seller until accepted by Buyer. Buyer will be deemed to have accepted the Proposal when it sends Seller notice of acceptance in writing or ships a sample to Seller for testing, whichever occurs first. Seller may withdraw the Proposal at any time before it is accepted by Buyer and it will in any event expire sixty days after issuance. No contract will exist except as herein provided. Upon acceptance of the Proposal by Buyer, the resulting contract (the “Contract”) will be governed by (a) the terms set forth in the Proposal and (b) these Terms of Sale. In the event of any conflict between the documents which form the Contract, such documents will be given effect in the order set forth above. Buyer’s acceptance is expressly limited to these Terms of Sale and Seller expressly objects to any additional or different terms proposed by Buyer. Any purchase order, acknowledgement, or other communication issued by Buyer in connection with the Proposal or any resulting contract will be construed to be for record and accounting purposes only, and any terms or conditions set forth in such communication will not form part of any resulting contract and will not be considered to be Buyer’s exceptions to these Terms of Sale.
3. Payment. Buyer will pay Seller the Price stated in the document to which these Terms of Sale are attached in the time and manner therein stated.
4. Deliverables; Ownership of Data. Seller will have exclusive ownership of the data collected by the Products (the “Data”) and the content of any analyses and reports relating to the Services which are delivered to Buyer (the “Reports”). Seller may use the Data for its own business purposes or for any other lawful purpose. Seller hereby grants to Buyer a non-exclusive, non-sublicenseable, non-transferable license to use the Reports for its own business purposes. The Parties agree that the Data do not constitute personally-identifiable data.
5. Publication/Publicity. Neither Party may make a press release announcing the execution of this service without the prior written consent of the other party. Each Party agrees to acknowledge the contributions of the other Party in all publications. Authorship and other matters regarding publications shall be governed by the Uniform Requirements for Manuscripts Submitted to Agricultural and Biological Science Journals.
6. Warranty. Seller warrants that each of its employees assigned to perform the Services will have the proper skill, training, and background to perform in a competent and professional manner and that the Services will be performed in such a manner. The warranty for Services will expire one (1) year after performance of the Service. If the Services do not meet the above warranties, Buyer will promptly notify Seller in writing prior to expiration of the warranty period. Seller will re-perform defective Services. The warranty period will not be extended or renewed. This Section 5 provides the exclusive remedies for all claims based on failure of or defect in Services, regardless of when the failure or defect arises and whether a claim however described is based on contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise. The warranties provided in this Article 5 are exclusive and are in lieu of all other warranties, conditions, and guarantees, whether written, oral, implied, or statutory.
7. Confidentiality. Each of Buyer and Seller (each a “Disclosing Party”) may provide Confidential Information to the other (the “Receiving Party”) in connection with the Proposal and the Contract. “Confidential Information” means information or material that is proprietary or commercially valuable to the Disclosing Party, provided that such information is disclosed either: (a) in a tangible medium and marked “confidential” or “proprietary” at the time of written disclosure or (b) orally or by demonstration and within twenty days thereafter is reduced by the Disclosing Party to a writing marked “confidential” or “proprietary.” Confidential Information does not include any information that (i) the Receiving Party lawfully knew without restriction before disclosure by the Disclosing Party, (ii) is now or becomes publicly known through no wrongful act or failure to act by the Receiving Party, (iii) developed by the Receiving Party independently without use of Confidential Information, or (iv) is hereafter lawfully furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure. The Receiving Party will: (i) keep all Confidential Information in confidence during and following termination or expiry of the Contract; (ii) not directly or indirectly disclose any Confidential Information except as required pursuant to a requirement of a government agency or law, provided that the Receiving Party provides prompt notice to the Disclosing Party of such requirement prior to such disclosure; (iii) limit its intentional distribution of Confidential Information to those who have a need to know; (iv) in no event use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Confidential Information; (v) not use Confidential Information except in the course of performing its obligations under the Contract; and (vi) not use Confidential Information for its own benefit or for the benefit of any third party. The terms of this Section are in addition to and will complement and supplement any other agreement between the parties regarding confidentiality or security of information.
8. Intellectual Property. Seller warrants that none of Services nor any deliverables will infringe upon or violate any patent, copyright, trade secret, or any other intellectual or proprietary rights of any third party. Seller will defend, indemnify, and hold harmless Buyer and its officers, directors, employees, and agents against all losses arising from any intellectual property claim. As between the parties, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information, and materials made, conceived, or developed by the Buyer alone or with others, which result from or relate to any Products or Services, and all rights with respect thereto will at all times be and remain the sole and exclusive property of Seller. The foregoing notwithstanding, Seller hereby grants to Buyer for the term of the Contract a non-exclusive, royalty-free, worldwide license to use such of Seller’s intellectual property, if any, as required to give Buyer full benefit of the Services based on such intellectual property.
9. Indemnification. Each Party will indemnify and hold harmless the other Party against all claims for personal injury or for damage to the tangible property of third parties, in each case to the extent such injury or damage is attributable to the negligence, willful misconduct, or strict liability of the indemnifying Party.
10. Limitations of Liability. Notwithstanding any other provision of this Agreement: (a) Seller’s liability in respect of any defect, error, or omission in the performance of the Services will be limited to an obligation to re-perform the defective Services at Seller’s cost; (b) the cumulative liability of Seller, whether for breach of contract, breach of statutory duty, under indemnity, in tort, or otherwise arising in connection with the provision of the Services, whether or not involving negligent acts or omissions, will not exceed the Price; and (c) Seller will in no event be liable for loss of profit or revenues; loss of use of equipment or systems; interruption of business; cost of capital, downtime costs, or increased operating costs; any special, consequential, incidental, indirect, or punitive damages; or for claims of the Buyer’s customers for any of the foregoing types of damages.
11. Suspension and Termination. Seller may terminate or suspend performance of all or a portion of the Services if any portion of the Price is not timely paid or for any other material breach of these Terms or of the contract of which they form a part which is not cured within ten days next following notice of such breach from Seller to Buyer.
12. Entire Agreement. The Contract, including the Proposal, these Terms of Sale, any other documents incorporated therein by reference, will constitute the sole and entire agreement of the Parties with respect to the Services and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, and communications, both written and oral, with respect to the Services. Should there be any conflict between these Terms of Sale and those of any other document forming part of the Contract, these Terms of Sale will take precedence unless expressly otherwise agreed in writing by Seller.
13. Counterparts. The Contract may be executed in any number of counterparts, which together will constitute one agreement. Any party may enter into this Agreement by executing a counterpart, and this Agreement will not take effect until it has been executed by all parties.
14. Notices. All notices, requests, demands, and other communications that are required or may be given pursuant to the Contract will be in writing and sent to Buyer at the address shown in the Proposal or to Seller at 235 Tuckaseege Road Suite A, Mount Holly, NC 28120, or to such other address as one Party may later specify to the other Party in writing. Notices may be sent by personal delivery, by electronic mail, by first-class mail, or by overnight courier. Delivery of any such notices will be deemed to have occurred: (i) on the actual date of service if delivered personally; (ii) at the time of receipt if given by electronic mail to the email addresses set forth in the Proposal or otherwise communicated to the other party; provided, however, that a party sending notice by electronic delivery will bear the burden of authentication and of proving transmittal, receipt, and time of receipt; (iii) on the third day after mailing if mailed by first class mail, return receipt requested, postage prepaid and properly addressed as set forth in this Section; or (iv) on the day after delivery to a nationally recognized overnight courier service during its business hours.
15. Amendment and Modification. No change to the Contract or to these Terms of Sale is binding upon Seller unless it is in writing, specifically states that it amends these Terms of Sale, and is signed by an authorized representative of Seller.
16. Waiver. Except as otherwise set forth herein, no failure to exercise or delay in exercising any rights, remedy, power, or privilege arising from the Contract will operate or be construed as a waiver thereof. Waiver by either party of any default of the other will not operate to excuse the defaulting party from further compliance with this contract, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Governing Law; Disputes. The Proposal and the Contract will be governed and construed in accordance with the laws of the State of North Carolina, without regard to principles of conflicts of law. Any dispute, controversy, or claim arising out of or relating to the Proposal or the Contract will be resolved in the federal or state courts sitting in Mecklenburg County, North Carolina, and the Parties hereby submit to the jurisdiction of such courts for that purpose.