Policies

1. General.

a. The Terms and Conditions contained herein apply to the AUGenomics entity (“Provider” or “AUGenomics”) identified in the quotation (“Quotation” or “Quote”) and along with the Provider Quotation form the Contract (“Contract”). Quotation shall mean a formal statement issued by AUGenomics to the client stated on the Quotation (“Client”) setting out the estimated cost for service. The Quotation may be provided herewith or provided separately. Unless the Provider and Client have signed a separate agreement for the specific services set forth in the Quote, with the express intent to supersede these Terms and Conditions, any provisions contained in any document issued by Client are expressly rejected and if the terms and conditions in this Contract differ from the terms of Client's order, this document shall be construed as a counteroffer and shall not be effective as an acceptance of the Client's order. This is the complete and exclusive statement of the Contract between Provider and Client with respect to Client's purchase of the services. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Provider and Client.

2. SERVICES.

a. By issuing a purchase order or otherwise initiating an order through augenomics.com or email by accepting product(s) or services or making any payment, Client expressly confirms and agrees that the purchase and sales transaction between Client and Provider is subject to and will be governed by these Terms of Service. Provider's failure to object to terms contained in any subsequent communication from Client will not be a waiver or modification of the terms set forth herein.

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b. Provider shall perform the services as described in the Quote and in accordance with this Contract (“Specifications”). Except as set out in the Specifications, Provider will be responsible for providing all facilities, personnel, equipment, software, technical knowledge, expertise, and other resources necessary to provide the Services Client shall perform all its obligations under this Agreement in compliance with all applicable federal, state, and local statutes, regulations and policies, specifically including, without limitation, those regarding environmental and occupational health and safety as well as animal welfare. Client shall use reasonable efforts to provide all Payment and Client Property to Provider in accordance with the Schedule.

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c. Upon completion of the services, all applicable biological materials and/or items to be processed or produced (“Samples”) in Provider's possession will be discarded or retained per Provider's standard operating procedures unless otherwise agreed upon in writing. In the event that Client shall receive physical Deliverables and/or requests to have Company Property returned, Provider shall package Samples using appropriate materials for the condition of Samples and in accordance with prevailing regulations and ship any property to Client either (i) using Provider’s standard shipment via FedEx Overnight Shipping or (ii) using Client’s requested shipping carrier option with title and risk of loss or damage to the Products transferred to Client upon delivery of Products to Client's address. All shipping costs shall be paid by Client unless otherwise agreed in writing by a Provider representative. AUGenomics will not be responsible or accept liability for Samples lost, damaged, or compromised in transit due to a carrier’s actions or inactions.

3. PROVIDER WARRANTIES.

Provider expressly warrants that (a) the Services will be performed in a competent, professional and workmanlike manner using fully qualified personnel, agents or subcontractors (“Provider Party”), in accordance with the milestones and time frames set forth in the Contract, consistent with customary industry standards, and at least in accordance with the standards and service levels set forth in this Agreement; (b) each of the Provider Parties assigned to perform Services under this Agreement shall have the proper skill, training, and background and the requisite certifications so as to be able to perform in a manner consistent with commercially reasonable standards and practices; (c) all Services and Deliverables will be free from defects in materials or workmanship, perform without material error and will substantially conform to the Specifications, (d) Provider will comply with all laws, rules and regulations in its performance of its rights and obligations under this Agreement and will obtain any governmental, quasi-governmental, and third-party certifications, licenses, permits, and the like that are required in connection with its performance under this Agreement; and (h) Provider has the requisite powers, authority, and rights necessary to enter into this Agreement and to perform its obligations under this Agreement, and to grant and assign the rights granted and assigned to Client under this Agreement; it is not a party, and will not become a party, to any agreement, obligation, or understanding that is inconsistent with this Agreement or might limit or impair Provider’s performance of its obligations under this Agreement. Upon Provider’s receipt of notice from Client of any non-conforming Services or Deliverables in breach of the warranties set forth herein, Provider shall immediately, at Client’s election and Provider’s sole expense: (i) refund to Client the price paid for such non-conforming Services or Deliverables or (ii) upon a written request from Client, re-perform any such non-conforming Services and replace any non-conforming Deliverables at no additional cost to Client within fourteen (14) days of Provider’s receipt of such request.

4. OWNERSHIP OF DELIVERABLES AND INTELLECTUAL PROPERTY:

1. a. Samples. All applicable biological materials and/or items to be processed or produced (“Samples”) shall remain the property of Client. Client shall own all Intellectual Property rights in all improvements to the Samples, that AUGenomics conceives, invents, reduces to practice, develops or makes, solely or jointly with Client or others, in the course of performance of this Agreement or as a result of receipt of Client’s Confidential Information (collectively, the “New Client Intellectual Property”). AUGenomics hereby assigns, and agrees to assign to Client, all of its right, title and interest in any New Client Intellectual Property. AUGenomics will use reasonable effort to promptly disclose to Client in writing all New Client Intellectual Property. AUGenomics will execute and will require AUGenomics’s personnel involved in the performance of the Services to execute, any documents required to confirm Client’s ownership of the New Client Intellectual Property, and any documents required to apply for, maintain and enforce any patents or other rights in the New Client Intellectual Property. Upon Client’s request and at Client’s expense, and at no cost to AUGenomics, AUGenomics will assist Client as may be necessary to apply for, maintain and enforce any patents or other rights in the New Client Intellectual Property. “Intellectual Property” means proprietary methods, discoveries, inventions, patents, trade secrets, copyrights, trademarks, service marks, trade dress, compositions, products, procedures, know-how, data, reports, programs, processes, protocols, written or electronic writings, illustrations, images, and any other form of proprietary rights.

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3. b. Results. Upon payment in full for the Services, Client shall own all Intellectual Property rights, if any, in the data produced by AUGenomics or its Affiliates as a result of performing the Services (the “Results”).

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5. c. Records. Except as otherwise set forth in this Agreement, AUGenomics will own all rights in the written and electronic records, accounts, notes, reports and data relating to its performance of the Services (the “Records”).

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7. d. Pre-existing Intellectual Property. Neither party will, as a result of this Agreement, acquire any right, title, or interest in any Intellectual Property that the other party owned or controlled as of the effective date of, or that the other party obtains ownership or control of separate and apart from the performance of, this Agreement. For further clarity, and notwithstanding anything herein to the contrary, Client agrees that AUGenomics’s core technologies existing prior to the Services shall remain the sole property of AUGenomics, and that any and all improvements to AUGenomics’s core technologies that are not specifically related to the Samples, whether or not conceived within the performance of the Services in connection with this Agreement, shall be the sole property of AUGenomics. For the purpose of the present Agreement “AUGenomics’s core technologies” means all models, programs, methodologies, know-how and general knowledge possessed by AUGenomics.

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9. e. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, AUGenomics may collect and compile aggregate and anonymized data in the course of performing Services that includes Results or Client Confidential Information for which all identifying information has been removed so that the data cannot be associated with Client without extraordinary effort and the data could not be used to identify Client, or otherwise discern that the information arose out of, was related to, or was obtained in connection with AUGenomics’s relationship with Client (the “Aggregated Data”). Once AUGenomics has created Aggregated Data, it may use the Aggregated Data for the improvement of Services and for any other business purpose as AUGenomics so desires in AUGenomics’s sole discretion, including industry analysis, benchmarking, analytics, marketing, and improvements to AUGenomics’s core technologies.

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5. Fees and Billings.

a. Payment of Fees.  AUGenomics will invoice Client monthly or upon completion of the Services and Client shall make any and all Payments for any Services to Provider in accordance with the Invoice sent by Provider which will contain the description of Services, quantities, shipping costs of Deliverables or Company Property, and total price. Client shall pay all undisputed fees and expenses within thirty (30) days of Client’s receipt of said invoice, unless Provider has agreed otherwise in writing.

b. Late Payments.  Any such amount not received by the due date will accrue interest at a rate of one and one-half percent (1.5%) per month or the maximum amount allowed by law, whichever is less. Customer shall also be responsible for attorneys’ fees and other costs of collection, if any, incurred by AUGenomics in attempting to collect any amounts due from Customer. 

c. Prepaid Fees. Client may pay fees in advance of the request for or performance of Services (“Prepaid Fees”) where authorized by Provider. Prepaid Fees are nonrefundable when paid and will expire if any Prepaid Fees remain twelve (12) months after the date of Provider's last Service to Customer. AUGenomics may apply the Prepaid Fees to any Quote or other amounts owed by Customer.​​

d. Reimbursement Of Expenses: Client shall reimburse Provider for reasonable and necessary expenses incurred by Client in connection with providing the Services, including expenses incurred prior to voluntary cancellation of services by Client, provided that such expenses are either (1) set forth or budgeted for in the applicable Quote, SOW, or purchase order or (2) otherwise previously approved in writing by Client.

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2. 6. RETURN OF PROPERTY Upon the termination of this Agreement or within three (3) months after Payment following project completion, whichever is first, Provider will promptly return to Client any property, documentation, records, data, or Confidential Information which is the property of Client upon request by Client, as described in the Quote, SOW, Purchase Order, or any other written request, consent, or agreement. In the event that Client had not submitted any written request, consent, or agreement to receive property, documentation, records, data, or Confidential Information, Provider agrees to notify Client of delivery options and delivery charges once every week thereafter. Upon written confirmation, Client agrees to accept delivery of this property and provide payment of applicable delivery charges in reasonable time following notice given by Provider. If Client does not respond or refuses receipt of property within two (2) weeks of third notice, Provider will have the right to properly dispose of property in accordance with California State law.

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4. 7. NAMES AND MARKS: Provider may not use the trademarks or name of Client or its employees for any commercial, advertisement, or promotional purposes without the prior written consent of Client.

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6. 8. CONFIDENTIALITY: a. “Confidential Information” is information, data and materials (including Client Property and Client Materials) provided to Provider by Client, whether business or personal, which would reasonably be considered to be private or proprietary to Client and that is not publicly known prior to the time of disclosure to Provider. Confidential Information includes the Deliverables and any and all data generated by Provider using Client Property and/or the Deliverables. Provider and Client both agree that Client’s name and the terms, existence, and subject matter of this Agreement will be considered Confidential Information.

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8. b. Subject to Section 10(d) and for a period of ten (10) years from the date of disclosure, Provider (i) shall hold such Confidential Information in strict confidence, (ii) shall not disclose the Confidential Information to any third party without the express written permission of Client, (iii) shall not use the Confidential Information other than in performing the Services, and (iv) shall treat the Confidential Information with at least the same degree of care as it treats its own confidential information but not less than with a reasonable degree of care, except that with respect to any Confidential Information that constitutes a trade secret under applicable law, such obligations will survive such expiration until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Provider or its representatives. Any employee who is given access to any such Confidential Information must have a legitimate “need to know” to provide the Services and, prior to being given such access, must be bound by a non-use and non-disclosure agreement in content at least as protective of Client and its Confidential Information as the provisions of this Section 10.

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10. c. Section 10(a) notwithstanding, however, Confidential Information shall not include information that: (i) is already known to Provider prior to the effective date, as evidenced by Provider’s or Client’s records; (ii) becomes publicly known without the wrongful act or breach of no this Agreement by Provider; (iii) has been or is disclosed to Provider by a third party who was not, or is not, under any obligation of confidence or secrecy to Client at the time said third party discloses to Provider, or has the legal right to do so; (iv) is developed independently by employees of Provider who had no access to or knowledge of the Confidential Information, as evidenced by Provider’s records; or (v) is approved for release by prior written authorization of Client.

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12. d. Provider may disclose Confidential Information to third parties as required by law or governmental regulation, however, Provider shall promptly notify Client as soon as reasonably practical of such a requirement and shall take reasonable and lawful actions to avoid or minimize the extent of such disclosure if requested by Client, at Client’s sole cost and expense, and in any event Provider will disclose only that portion of the Confidential Information which its legal counsel determines it is required to disclose. Any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally required disclosure.

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14. 9. TERM and TERMINATION: The term of this Agreement (“Term”) shall commence on the date of the Quote and shall continue to govern until completion of the Quote unless otherwise terminated or amended in writing by duly authorized representatives of Provider and Client. Upon termination of this Agreement, all then-ongoing SOWs shall continue under the terms of this Agreement and the applicable SOW until all obligations in connection therewith are fully performed, unless sooner terminated in accordance with this Section 11. In the event that either Party commits a breach of any term or condition of this Agreement and fails to remedy that breach within thirty (30) days after receipt of written notice of the breach sent by the non-breaching Party, the non-breaching Party may at its option terminate this Agreement by sending notice of termination in writing. Termination is effective five (5) business days after it is sent. Either Party may terminate this Agreement for convenience upon thirty (30) days’ notice. In the event of any termination prior to completion of the Services, except for termination for an uncured breach by Provider, Provider shall be paid for all work completed and all reasonable, non-terminable obligations incurred through the effective date of termination that cannot be prevented or mitigated and were pre-approved by Client or specified in the applicable Quote, SOW, or purchase order and which arise directly as a result of such Quote, SOW, or purchase order.

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16. 10. CAPACITY/INDEPENDENT CONTRACTOR: In providing the Services under this Agreement it is expressly agreed that Provider is acting as an independent contractor and not as an employee of Client. Provider and Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.

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18. 11. SERVICES AGAINST RECOMMENDATIONS: Any Service or amended Service requested by Client that do not agree with Provider's recommendations and are clearly advised against by Provider to Client may be refused by Provider at time of request. Any Service requests made by Client after explicit notice that the request does not agree with Provider’s recommendations but are fulfilled by Provider are fulfilled without warranty and in turn release Provider from any liability in the event of Client Property or data loss, inaccuracy, or damages incurred by following Client’s request.

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20. 12. DISCLAIMER and LIMITATIONS: EXCEPT AS PURSUANT TO AN INDEMNITY OBLIGATION IN SECTION 15 AND EXCEPT FOR ANY DAMAGES ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 10 OR TO THE EXTENT ANY DAMAGES WERE CAUSED BY THE VIOLATION OF LAW, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF PROPERTY, LOSS OF DATA OR LOSS OF USE DAMAGES) THAT THE OTHER PARTY MIGHT INCUR OR THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF SAID PARTY OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SAID DAMAGES OR LOSSES. IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO PROVIDER FOR THE SERVICES PURCHASED OR ORDERED UNDER THE APPLICABLE PURCHASE ORDER, EXCEPT AS PURSUANT TO AN INDEMNITY OBLIGATION IN SECTION 15 AND EXCEPT FOR ANY CLAIMS ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 10 OR TO THE EXTENT SUCH DAMAGES WERE CAUSED BY THE VIOLATION OF LAW, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY.

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22. 13. INDEMNITY: Provider agrees to indemnify, defend and hold harmless Client and Client’s personnel, employees, admin, directors, officers, agents, successors and assigns from any and all claims, allegations, liabilities, losses, damages, and fees (including attorney’s fees) made by third party which arise from (i) Provider’s breach of the representations, warranty, or obligations as described in this Agreement, including the performance of the Services by Provider hereunder, (ii) the negligence or willful misconduct of Provider or any of its employees, agents or representatives, (iii) Provider’s infringement or misuse of third party’s intellectual property or product, or (iv) Provider’s failure to comply with applicable law and/or regulations, except in each case to the extent caused by the negligence or willful misconduct of Client. Client agrees to indemnify, defend and hold harmless Provider and Provider’s personnel, employees, admin, directors, officers, agents, successors and assigns from any and all claims, allegations, liabilities, losses, damages, and fees (including attorney’s fees) made by third party which arise from (i) Client’s breach of the representations, warranty, or obligation as described in this Agreement, (ii) the negligence or willful misconduct of Client or any of its employees, agents, or representatives, (iii) Client’s infringement or misuse of third party’s intellectual property or product, or (iv) Client’s failure to comply with applicable law and/or regulations, except in each case to the extent caused by the negligence or willful misconduct of Provider.

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24. 14. BIOHAZARDOUS MATERIAL DECLARATION: Client agrees to disclose any and all Biohazardous Material prior to or concurrent with submission of a Purchase Order by Client or prior to the shipment of Company Property, whichever is first. Acceptance of work relating to or containing Biohazardous Material is at the discretion of Provider. Provider reserves the right, but not obligation, to refuse any work involving Biohazardous Material. “Biohazardous Material” is defined as infectious agents or hazardous biological materials that present a risk or potential risk to the health of humans, animals, or the environment, whether risk is direct through infection or indirect through damage to the environment. Biohazardous Materials may include certain types of recombinant DNA, human cells, blood and tissue, organisms and viruses infectious to humans, animals, or plants (e.g., parasites, viruses, bacteria, fungi, prions, and rickettsia), and biologically active agents (e.g., toxins, allergens, and venoms) that can cause disease in other living organisms or cause significant impact to the environment or community.

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26. 15. NON DISCRIMINATION: Provider will not discriminate in its employment practices or against acceptance of projects or quality of Services rendered to Client based on race, gender, age, religious belief or non-religious belief, ethnic origin, disability, marital status, or sexual orientation.

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28. 16. INSURANCE: During the Term of the Agreement, Provider will obtain and/or maintain, at its sole cost and expense, insurance coverage that meets the following requirements: (i) is required by law; (ii) is adequate to insure Provider against legal liability related to the Services performed under the Agreement, including commercial general liability and cyber liability; and (iii) is issued by financially sound and reputable insurers.

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30. 17. MISCELLANEOUS: a. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its rules or procedures involving conflicts of laws. All actions relating to this Agreement shall be brought exclusively in the United States District Court for the Southern District of California, unless no federal subject matter jurisdiction exists, in which event venue will lie in the California State courts located in San Diego County. The Provider and Client irrevocably waive all present and future objections to personal jurisdiction, forum or venue in such courts.

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32. b. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.

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34. c. This Agreement embodies the entire understanding of the parties and supersedes all other past and present communications and agreements relating to the subject matter. No amendment or modification of this Agreement shall be valid unless made in writing and signed by authorized representatives of both parties.

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36. d. Neither Provider nor Client will be liable for failure of or delay in performing obligations set forth in this Agreement, and neither will be deemed in breach of its obligations, if such failure or delay is due to natural disasters or other causes beyond the control of a Party and reasonable notice of the delay is provided to the other Party.

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38. e. This Agreement is binding upon the benefit of the Parties and their successors, but this Agreement may not be assigned by either party without the prior written consent of the other party. Notwithstanding anything to the contrary herein, Client may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of the Client’s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or stock, change of control or otherwise. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void.