BERYLLIUM Terms and Conditions
These terms and conditions (“Terms and Conditions”) shall apply to research activities (“Research Activities”) conducted by Beryllium Discovery Corp., dba/Beryllium (“Beryllium”) as described in an official quotation attached to this document (“Quotation”) on behalf of the party identified on the Quotation (“Customer”). Such Research Activities may involve the use of materials provided by Customer to Beryllium (“Customer Materials”); such use of Customer Materials shall also be governed by these Terms and Conditions. These Terms and Conditions shall be deemed to be in effect upon Customer submission and Beryllium acceptance of an official purchase order (“Purchase Order” or “PO”) to Beryllium referencing the Quotation with defined Research Activities and identifying any Customer Materials, In the event of conflict with terms and conditions presented by Customer, these Terms and Conditions shall be deemed as accepted by Customer and, together with the Quotation, controlling by virtue of issuance of the Purchase Order BERYLLIUM specifically rejects ANY CUSTOMER terms OR conditions INCLUDED WITH OR ATTACHED TO A PURCHASE ORDER. These Terms & Conditions control OVER ANY OTHER TERMS OR CONDITIONS INCLUDED WITH OR ATTACHED TO A PURCHASE ORDER.
1. Work and Fees. The Purchase Order and Quotation outline the Research Activities and the fees to be paid by Customer to Beryllium for Research Activities.
2. Customer Materials. Customer Materials will be used by Beryllium solely for the purposes described in the= official Quotation, and will not be used for any other purpose or used in humans. Customer Materials will not be used by Beryllium to support the development of any commercial product containing Customer Materials or any analogues or derivatives thereof.
3. Results. Promptly following completion of the Research Activities or upon termination of these Terms and Conditions pursuant to Paragraph 12, Beryllium will send results acquired through use of Customer Materials to Customer and other Deliverables (as defined in Paragraph 5) subject to the limitations set forth in Paragraph 8.
4. Return or Disposal of Customer Materials. Beryllium will properly dispose of or return to Customer, at Customer’s election, all unused supplies of Customer Materials if the investigation is discontinued, completed or upon termination of the Terms and Conditions pursuant to Paragraph 12.
5. Work Product. Except as provided herein, all work product resulting from the Research Activities, including but not limited to all new materials and intellectual property developed hereunder (collectively, “Deliverables”) shall be solely owned by Customer. Customer acknowledges that Beryllium may have previously conducted work on targets which may be the subject of Research Activities. Nothing herein shall be construed to give Customer any rights in any of Beryllium’s inventions, materials, technology or information (“Beryllium IP”) which were not specifically created or obtained through use of Customer Materials pursuant to these Terms and Conditions. Customer shall have no rights to any Beryllium IP including but not limited to any improvements thereto obtained through Beryllium’s conduct of Research Activities. Notwithstanding the above, nothing shall be construed as granting Beryllium any ownership or other rights in Customer Materials or Deliverables.
6. Compliance. Beryllium will comply with all federal, state and local laws, rules and regulations and guidelines regarding Customer Materials and handling of Customer Materials.
7. Confidentiality. (a) “Confidential Information” shall mean any and all technical and non-technical information relating to the current, future or proposed products, services or research activities of each of the parties, including without limitation, written specifications, reports, sketches, drawings, schematics, any trade secrets, knowledge or proprietary information of a party regarding, without limitation, its formulae, formulations, design details and specifications, engineering, sources of supply, processes, crystallization methods, manufacturing methods, merchandising methods, pricing, inventions, improvements, know-how, products, equipment, programs, technology, customer lists, marketing and business plans, information relating to customers and their requirements or other information regarding their financial or business affairs which is treated by either party as confidential. “Confidential Information” does not include information which (i) is generally available to the public other than as a result of unauthorized disclosure by the receiving party; (ii) was already in possession of the receiving party free of any obligation of confidence as evidenced by written records; (iii) is approved in writing by the other party for the receiving party to publish, use or disseminate; (iv) is independently developed by or on behalf of the receiving party, without reliance on the information received hereunder; or (v) is required to be disclosed in response to a valid court order or governmental body, or otherwise required by law, (but only to the extent required to be disclosed hereunder) or is necessary to establish the rights of either party under these Terms and Conditions provided that the receiving party gives the disclosing party reasonable notice of such required disclosure. (b) During the term these Terms and Conditions are in effect and for a period of six (6) years thereafter, neither party shall use, other than in relation to the subject matter of these Terms and Conditions, or disclose to third parties other than its affiliates, any Confidential Information, knowledge, or property of the other party which is furnished or generated in the course of the activities under these Terms and Conditions. Provided it receives prior written approval from the other party, either party may disclose Confidential Information of the other party to third parties who are bound by terms of confidentiality at least as strict as in these terms and conditions. Upon completion of services hereunder and upon request of the other party, each party will return all papers, records or other documents made available to it by the other party and destroy all copies of such papers, records or other documents, except that the parties may retain one copy of such papers, records or other documents for the sole purpose of determining its obligations under these Terms and Conditions.
8. Warranties; Disclaimers; Limitations on Use. (a) Customer will fully indemnify and hold Beryllium, its subsidiaries, officers, directors, employees and agents harmless from any and all liability, including attorneys’ fees, that may attach to or flow from Customer’s use of Customer Materials, any Deliverables or Beryllium information, technology or intellectual property, except in the event and to the extent of Beryllium’s negligence or willful misconduct. (b) CUSTOMER UNDERSTANDS THAT ANY DELIVERABLES SUPPLIED TO CUSTOMER BY BERYLLIUM WILL BE SUPPLIED “AS IS” AND IS PROVIDED WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. CUSTOMER ACKNOWLEDGES THAT THE DELIVERABLES ARE EXPERIMENTAL IN NATURE AND MAY HAVE UNKNOWN HAZARDOUS CHARACTERISTICS, THAT THEY ARE AWARE OF THE RISKS OF WORKING WITH EXPERIMENTAL MATERIALS AND THAT THEY WILL STRICTLY ADHERE TO PROPER LABORATORY PROCEDURES FOR HANDLING CHEMICALS WITH UNKNOWN HAZARDS. THE DELIVERABLES WILL NOT BE — USED IN HUMANS, OR — USED IN ANY FORM OR MANNER FOR HUMAN DIAGNOSTIC OR THERAPEUTIC PURPOSES. (c) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING UNDER PRODUCTS AND SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, LOST OPPORTUNITY OR LOST PROFIT.
9. Maximum Liability. In no event shall Beryllium’s liability hereunder exceed the price paid by Customer as set forth on the Purchase Order and/or Quotation for which any liability is attributable.
10. Governing Law. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Massachusetts, excluding its conflict of law rules.
11. Miscellaneous. The parties agree that these Terms and Conditions, together with the Quotation, Purchase Order and any other attachments hereto, comprises the complete and exclusive agreement between Beryllium and Customer regarding the performance of Research Activities hereunder. These Terms and Conditions supersede all prior agreements and understandings between the parties hereto.
12. Term. The term of these Terms and Conditions shall commence on the date of acceptance by Beryllium of the first Purchase Order issued (with no attempted modification to these Terms and Conditions) by Customer and shall terminate following completion of all Research Activities and delivery of all Deliverables to Customer from all Purchase Orders issued under these Terms and Conditions, unless extended upon mutual consent; submission of a Purchase Order at any time referencing these Terms and Conditions and acceptance by Beryllium shall serve to extend these Terms and Conditions No further use may be made of Customer Materials by Beryllium after termination. Paragraphs 3, 4, 5, 7, 8, 9, 10 and 12 shall survive termination. Release 15May2014