Custom Assay Development Services Terms & Conditions
These terms and conditions (“Terms”) apply to Client’s purchase of custom research solutions, including without limitation, custom assay development services (“Services”), from the Revvity entity listed on the quotation or proposal (“Revvity”) issued to you. These Terms, together with the quotation (if any) and the proposal, form the entire contract between Client and Revvity (the “Agreement”) with respect to your purchase of Services. Performance of Services is conditioned on your acceptance of the Agreement. Your submission of a purchase order or other similar document to indicate payment for the Services shall indicate your acceptance of these Terms. In the event of a conflict of terms contained in the Agreement, the proposal takes precedence over these Terms, and any written contract signed by both parties takes precedence over either. These Terms supersede all prior communications between the parties, whether written or oral, relating to the Services, except for a written contract signed by both parties. Revvity expressly rejects any different or additional terms or provisions contained in any document Client provides, and if the terms and conditions in this Agreement differ from the terms of your offer, this Agreement will serve as our counteroffer. FOR ABSOLUTE CLARITY, ANY TERMS AND CONDITIONS CONTAINED ON CLIENT’S PURCHASE ORDER SHALL NOT BECOME PART OF THIS AGREEMENT, ARE HEREBY DISCLAIMED, AND SHALL BE OF NO FORCE OR EFFECT.
“Background IP” of a party shall mean any Intellectual Property owned by a party prior to the effective date of the proposal that is necessary for the performance of Services.
“Confidential Information” shall mean any confidential or proprietary technical, business, financial, and commercial information and materials, including without limitation, any information about antibody or reagent selections.
“Deliverables” shall mean the finalized items listed in the “Deliverables” section of the proposal; provided, however, that deliverables shall not include, whether or not listed in the “Deliverables” section of the proposal, Revvity Background IP, Revvity Improvements, or Results.
“Field of Use” shall mean for Client’s internal RUO purposes only, and not for (i) in vitro diagnostic, prophylactic or therapeutic purposes or in foods, drugs, biologics, medical devices or cosmetics, for humans or animals; and/or (ii) commercial use, but excluding use of the Deliverables for validating a commercial product.
“Improvement” shall mean, with respect to a party, any Intellectual Property created in the course of performing the work associated with the proposal, that incorporates, utilizes, has as a necessary component, or discloses, the Background IP of such party. Any Improvements shall be owned by the party owning the corresponding Background IP, regardless of inventorship of such Improvement.
“Intellectual Property” shall mean any proprietary technology or materials, trade secrets, know-how, data, tests, assays and other Confidential Information, whether or not protected by a patent or patent application.
“Results” shall mean all results, such as, but not limited to, proof-of-principle data, assay development processes, the assay protocols, labelling and/or synthesis techniques, antibody selections, sequences, screening experiments, methods of sample preparation, methods of conjugating beads to analytes, the composition of matter of the specific chemistries of the assays, methods of performing the assay and/or other methods, developed by Revvity in the performance of its services under the Proposal. For clarity, Results do not include Background IP or Improvements of Revvity or Client.
Without prior written approval, each party will keep all Confidential Information concerning this Agreement made available to such party by the other party, including the existence of this Agreement, as far as they are not common knowledge, strictly confidential and will in no event provide the such Confidential Information to a third party other than their affiliates and professional advisors, and then only subject to the same obligation of confidentiality as apply to the parties under this agreement.
Further, without the prior written permission of a party (“Disclosing Party”), the other party (“Receiving Party”) will not disclose any information pertaining to any Services unless such information (i) is already known to Receiving Party before Disclosing Party’s entering into this Agreement, (ii) is or becomes publicly available through no fault of Receiving Party, (iii) is received from a third party which has the legal right to disclose it to Receiving Party (iv) is required by any law, rule, regulation, decision, order, subpoena or other process to be disclosed; or (v) is shown through sufficient evidence to be independently developed by the Receiving Party without reference to the information. If disclosure by subpoena, order, etc., is requested, Receiving Party will promptly notify Disclosing Party of such request.
Without limiting either party’s remedies in any way, the parties acknowledge and agree that any actual or threatened breach of the confidentiality and non-use obligations in this Agreement relating to the Confidential Information may cause irreparable harm for which remedies at law would not be adequate. Therefore, in the event of any breach or anticipatory breach of this section, each party shall be entitled to seek specific performance and other injunctive and equitable relief without limiting any of its other available rights and remedies.
Neither party will use the other's name, or the name of any employee or agent, in any advertising or sales promotional material or in any other publication without the prior written consent of the other party except for internal communications to affiliates of such party (including publications).
This Agreement may include a requirement for the Client to provide to Revvity certain materials for use in the performance of the services (“Client Materials”). Client Materials provided to Revvity hereunder shall remain the sole property of Client, will only be used in furtherance of the services described in the proposal, will only be used in accordance with the terms of this Agreement, and will remain the Confidential Information of Client. In the event thethe Client Materials are destroyed in whole or in part during the performance of the services, Client shall have no claims whatsoever, including, without limitation, claims for damages of any kind, against Revvity or any of its employees or representatives as a result of such destruction. At Client’s election, Revvity will dispose of or return to Client, at Client’s sole expense, all unused Client Materials provided by Client when the work under the proposal is completed or otherwise terminated.
Rights of the Parties Concerning the Deliverables and the Results; Use Rights of Deliverables
Revvity shall solely own the Results and the Client shall own the Deliverables to the extent such Deliverables do not include Results, Revvity Background IP, or Revvity Improvements. Without the prior written consent of Revvity, the Client shall only be permitted to use the Deliverables in the permitted Field of Use.
Subject to the payment of any undisputed invoices owed under this Agreement, to the extent the Deliverables require the use of Revvity Background IP, Revvity Improvements, and/or Results, subject to the terms of this Agreement, Revvity hereby grants Client and its affiliates the non-exclusive right to use the Results, Revvity Background IP, and Revvity Improvements solely in the Field of Use and solely to the extent necessary to use the Deliverables. Client may provide any of the Deliverables and Results to its affiliates, provided such parties are bound to the same or substantially similar use and confidentiality restrictions set forth herein, and only use the Deliverables and Results in accordance with the terms of this Agreement. Client remains liable for its affiliates’ use of such Deliverables and Results. Subject to the use restrictions provided herein, Client and its affiliates are authorized to use the Deliverables and Results provided in the framework of the proposal without any further obligation towards Revvity. Except as set forth herein, Client shall be prohibited from providing or transferring the Results or any Deliverables incorporating or disclosing Revvity Background IP or Revvity Improvements, to any third party, without the prior written consent of Revvity.
Subject to the confidentiality provisions herein, Revvity expressly reserves the right to use, or have its affiliates use, and to otherwise fully exploit, including license and sublicense, either free of charge or in return for payment, any of the Results to perform similar services for any third party, provided the foregoing is without use of any Client Background IP or Client Improvements. For the avoidance of doubt, except for Client Background IP or Client Improvements, Revvity is entitled to and has the right to commercialize, market, use, or otherwise exploit the Results, at any time and for any purpose.
Fees and Payment Terms
Fees are payable in accordance with the proposal, within thirty (30) days from the date indicated on the invoice from Revvity. Fees are subject to increase by Revvity in the event of an unanticipated increase in costs provided that Revvity shall advise Client in advance of the proposed increase and obtain Client’s approval before proceeding. If Client does not approve the additional fees, then Revvity may elect to proceed with the services hereunder or to terminate this Agreement effective immediately and cease all further performance hereunder. If the parties agree on an increase they shall amend the proposal to reflect the increase.
REVVITY WARRANTS THAT THE DELIVERABLES ARE, AT THE TIME OF TRANSFER, FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP. REVVITY MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT DELIVERABLES MAY BE USED BY THE CLIENT WITHOUT INFRINGING THE PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTIES. NOTIFICATION OF ANY BREACH OF A REVVITY WARRANTY MUST BE MADE TO REVVITY IN WRITING WITHIN SIXTY (60) DAYS OF CLIENT’S RECEIPT OF THE DELIVERABLES. NO CLAIM SHALL BE HONORED IF CLIENT FAILS TO NOTIFY REVVITY WITHIN THE PERIOD SPECIFIED. THE SOLE AND EXCLUSIVE REMEDY OF CLIENT FOR ANY LIABILITY OF REVVITY OF ANY KIND INCLUDING LIABILITY BASED UPON WARRANTY (EXPRESS OR IMPLIED WHETHER CONTAINED HEREIN OR ELSEWHERE), STRICT LIABILITY, CONTRACT, OR OTHERWISE IS LIMITED TO THE REPLACEMENT OF THE DELIVERABLES OR THE REFUND OF THE INVOICE PRICE THEREOF. REVVITY SHALL NOT IN ANY CASE BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY DEFECT, DELAY, NONDELIVERY, RECALL, BREACH, OR OTHER CLAIM.
(a) Revvity hereby represents that Revvity is generally authorized to perform the Services described in this proposal for Client.
(b) With regard to any materials or information provided to Revvity by Client in the performance of work related to the proposal, Client represents and warrants to own all rights and/or have applicable licenses to allow Client to convey such materials to Revvity and to allow Revvity to perform the work described in the proposal without any restriction or infringement of third party rights.
CLIENT SHALL INDEMNIFY AND HOLD HARMLESS REVVITY AND ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY LOSS, CLAIM, INJURY, DAMAGE, EXPENSE, OR LIABILITY (INCLUDING ATTORNEY’S FEES) OF WHATEVER KIND OR NATURE, WHICH MAY ARISE FROM OR BE IN CONNECTION WITH (I) CLIENT’S USE, STORAGE, OR HANDLING OF CLIENT MATERIALS OR THE DELIVERABLES, OR (II) ANY ACTUAL OR ALLEGED THIRD PARTY CLAIM ARISING OUT OF REVVITY’S PERFORMANCE OF THE WORK DESCRIBED IN THE PROPOSAL AND/OR QUOTATION, OR (III) BREACH OF CLIENT WARRANTY.
Revvity shall notify Client of any claim for indemnification as soon as reasonably practical.
This Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Massachusetts, U.S.A. without regard to the conflicts of law provisions thereof.
Either party is entitled to terminate this Agreement with sixty (60) days’ notice if the other breaches any terms of this Agreement and fails to cure within such sixty days. Client may, for any reason, terminate this Agreement upon Revvity’s completion of any Milestone or Phase, as described in the proposal, so long as such termination notification is received by Revvity prior to Revvity’s issuance of an invoice for the next Milestone, or beginning of the next Phase. Further, if, at any time, Revvity determines, in its reasonable judgment, that it would be technically or commercially unreasonable to continue to pursue any Milestone or Phase set forth in the proposal, Revvity is entitled to terminate this Agreement with immediate effect. In the event of termination, the Client shall make payment for any completed Milestones or Phase, and shall make payment, on a prorated basis, for any completed portion of a pending Milestone or Phase. In the event of termination, the Confidentiality, Rights of the Parties concerning Deliverables, etc., Limited Warranty, Indemnification, ownership of inventions, and Governing Law provisions shall remain in effect.