LAST UPDATED: 16 September 2017
1. These Terms
By clicking the “Continue” button below, you will be leaving websites controlled or operated by VWR International, LLC and its affiliated companies (“VWR”) and will be directed to a Platform (as defined below) operated by The Assay Depot, Inc., which does business as Scientist.com (“Scientist.com”).
Your use of the Platform will be subject to these Terms and the Policies (as defined below) and your purchase of Supplier Services from Suppliers (each as defined below) will be governed by these Terms and the Supplier Agreement attached to these Terms as Schedule 1. These Terms include the Supplier Agreement. By agreeing to these Terms, you will be a third party beneficiary of the Supplier Agreement and you can enforce its terms directly against the Supplier. As further explained in Section 4, neither Scientist.com nor VWR has any liability to you for the Supplier Services. Please read these Terms carefully before continuing on to the Platform. By accessing or using the Platform, you acknowledge that you have read, understood and agree to be bound by these Terms.
These Terms establish terms and conditions by which you or the organization or entity you represent (the “Client” or “you”) can use the Platform and purchase a service or product from a supplier of such services or products (the “Supplier”). In these Terms, the provision of the Platform, the marketplace on it and its associated websites, software, hardware, infrastructure, application programming interfaces, content, trademarks, and other associated materials and the Scientist.com Research Concierge shall be collectively referred to as the “Platform.” The provision of products and services by and/or from a Supplier shall be known as “Supplier Services.”
Any purchases of Supplier Services through the Platform are subject to these Terms and are excluded from any agreements between you and VWR, including any warranties, pricing agreements, or purchasing incentives between you and VWR.
By clicking the “CONTINUE” button, you represent to Scientist.com, and VWR that you have read and agree to these Terms. If you do not agree to these Terms, you may not access or use the Platform.
Only parties that can lawfully enter into and form contracts under applicable law may use the Platform. By accepting these Terms, you hereby represent and warrant to Scientist.com and VWR that you have such ability to enter into and form contracts, and to the extent such acceptance is made on behalf of any entity or other organization, the individual making such acceptance is authorized to bind such entity or other organization to these Terms. Further, you hereby represent and warrant to VWR and Scientist.com that in accepting these Terms as an individual or on behalf of any entity or other organization, you or the entity/organization in question is not in violation of the terms or conditions of any contract or other agreement to which you/it may be a party.
These Terms may be updated from time to time. The effective date of these Terms will be updated if these Terms are updated. You are responsible for reviewing these Terms and any applicable updates to these Terms. Your use of the Platform and the Supplier Services after the effective date of any updates to these Terms will constitute your binding acceptance of such updated Terms. For the avoidance of doubt, particular Statements of Work, or SOWs (as defined below) shall be governed by the Terms in existence at the time such SOW became effective.
Scientist.com warrants and agrees that it will comply with its obligations under the Supplier Agreement and these Terms. VWR warrants and agrees that it will comply with its obligations set forth in these Terms. Client warrants and agrees that it will comply with its obligations in these Terms.
3. The Platform
Subject to these Terms, Scientist.com will host, maintain and update the Platform.
You alone shall be responsible for (i) your use of the Platform or any reliance thereon, (ii) any decision to order or not to order Supplier Services through the Platform and any use of the results of the Supplier Services or any reliance thereon, and (iii) assuring the satisfactory performance of the Supplier Services ordered through the Platform. Except as set forth in these Terms, Scientist.com and VWR undertake no responsibility with respect to the undertakings between you and Supplier.
You may not use the Platform if you are a resident of a country embargoed by the United States, or you are a foreign person or entity blocked or denied by the U.S. government. You represent that neither you nor any of your affiliates is such a resident or is so blocked or denied, or is included on any of the restricted party lists maintained by the U.S government. You shall immediately notify Scientist.com and VWR if the above representation no longer is accurate.
4. Supplier Agreement.
All Suppliers offering Supplier Services on the Platform entered into a Supplier Agreement to confer benefit on you prior to using the Platform to view and fulfill requests for Supplier Services from clients. You are a third party beneficiary to the Supplier Agreement and can enforce its terms directly against the Supplier and pursue all forms of redress against the Supplier that you are entitled to under the law or in equity at any time and from time to time as if you were a party to the Supplier Agreement. The term “Supplier Services” in these Terms has the same meaning as the term “Services” in the Supplier Agreement. Defined terms in these Terms have the same meanings as in the Supplier Agreement unless stated otherwise or the context requires otherwise.
You agree that purchases of Supplier Services made through the Platform will be governed by and subject to these Terms (including the Supplier Agreement), to the same extent as if Client were a party thereto, as well as the terms of any Statement of Work (“SOW”) agreed upon between you and a Supplier for a specific project. You warrant, represent and undertake that you will comply with the Client related obligations and provisions in the Supplier Agreement as if you were a party to it and you will comply with the provisions of the SOW entered into between you and the Supplier. You warrant, undertake and represent that you will be directly liable to the Supplier for any breach of such terms as if you were a party to the Supplier Agreement and that the Suppliers may enforce this provision of these Terms and pursue any applicable remedy available to it directly against you as if they were a party hereto.
YOU FURTHER AGREE THAT NEITHER SCIENTIST.COM NOR VWR HAS ANY LIABILITY OF ANY NATURE WHATSOEVER TO YOU OR ANY OTHER THIRD PARTY FOR THE SUPPLIER SERVICES, YOUR USE OF THE SUPPLIER SERVICES AND/OR THE RESULTS OF THE SUPPLIER SERVICES AND/OR RELIANCE THEREON, THE ACTS OR OMISSIONS OF THE SUPPLIER, INCLUDING, WITHOUT LIMITATION, FOR BREACH OF THE SUPPLIER AGREEMENT AND/OR SOW BY THE SUPPLIER. NEITHER SCIENTIST.COM NOR VWR SHALL HAVE ANY LIABILITY TO YOU THEREFOR.
For the avoidance of doubt, as a third party beneficiary of the Service Agreement, you will exercise your rights in respect of any supplier services or breach of the relevant Supplier agreement By supplier dirEctly against supplier and hereby warrant and undertake to VWR and scientist.com not to bring any claim of any nature whatsoever against either of them in that regard. You shall indemnify and hold harmless VWR and Scientist.com in full and on demand against any costs, losses, claims or exepenses (including reasonable legal costs) that they may suffer or incur in relation to a NY SUCH CLAIM YOU DO BRING AGAINST EITHER OF THEM IN BREACH OF THIS PROVISION.
References in these Terms to the Supplier Agreement shall include the SOW, unless the context requires otherwise.
VWR is providing access to the Platform and invoicing and Scientist.com is providing the Platform as a convenience to you and neither VWR nor Scientist.com make any representation or warranty relating to any Supplier, any other Party other than itself, or any Supplier Services, and expressly disclaims any representations or warranties implied or granted by applicable law. You are solely responsible for determining the suitability and fitness for purpose of the Platform, the Supplier Agreement, the Supplier, and the Supplier Services any Supplier may provide. You are also solely responsible for determining if any regulatory restrictions or requirements apply to the Supplier Services provided to you by Suppliers. VWR makes no recommendation with respect to the Platform, and neither VWR nor Scientist.com make any recommendation with respect to any Supplier, Supplier Services provided by any Supplier, or the information they provide, or the accuracy or completeness of that information. Further, THE ASSISTANCE PROVIDED TO FACILITATE ORDERING, BILLING AND PAYMENT BY SCIENTIST.COM AND VWR SET FORTH IN THESE TERMS IN NO WAY MAKES EITHER OF THOSE PARTIES THE SUPPLIER OF THE SUPPLIER SERVICES IN QUESTION, OR IN ANY WAY RESPONSIBLE FOR THE PROVISION OF THE SERVICES, OR RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF THE SUPPLIER IN RELATION THERETO.
5. Ordering Supplier Services
In the event of a conflict between the Supplier Agreement and these Terms relating to how to order Supplier Services, these Terms shall prevail.
You may use the Platform to send a request for proposal (“Request for Proposal”) for Supplier Services to Suppliers. Client agrees to respond within two (2) Business Days to questions from the Research Concierge and Supplier about a Request for Proposal that is placed by Client through the Platform. Client is under no obligation to purchase any of the Supplier Services it requests through the Platform. If any Client request results in a purchase, however, Client agrees to use the Platform to purchase the Supplier Service(s).
If a Client uses the Platform to get information and/or quotes for a Supplier Service but then purchases the Supplier Service outside of the Platform, Client agrees that Scientist.com can invoice the Client directly for 15% of the purchase price, and Client agrees to pay such amount to Scientist.com.
Suppliers may respond to your Request for Proposal by sending you an estimate or SOW through the Platform. You and the Supplier can communicate through the Platform with respect to potential Supplier Services and to create an SOW directly between the Supplier and the Client which will incorporate the Supplier Agreement. For the avoidance of doubt, the SOW shall be governed by the relevant Supplier Agreement in existence at the time the SOW becomes effective, and the terms of the SOW (and the Supplier Agreement) shall then apply between Client and Supplier as if the Client were a party thereto.
The SOW will include a description of the Supplier Services, the deliverables, the expected delivery time, the cost (including, as applicable, estimated shipping, INCOTERM, handling, and delivery fees, upfront payments, taxes, and milestone payments, if any) and any other relevant information. Except where specifically noted otherwise, prices on the Platform represent the price of the Supplier Services, as determined by the Supplier. Prices may or may not include the cost of shipping samples or products to or from you or the Supplier. It is solely your responsibility to understand all costs and fees associated with the Supplier Services prior to entering into a SOW. Scientist.com does not assume any financial or legal responsibility or liability as a result of your use of the Platform or Supplier Services.
Once the SOW is agreed between you and the Supplier, if you decide to purchase the Supplier Services from the Supplier, you will be directed to a website controlled by VWR, where the Supplier Services that the Supplier will provide to you under the SOW will be added to your VWR shopping cart and you can complete your purchase of those Supplier Services.
Once you purchase the Supplier Services in the VWR shopping cart, VWR shall promptly issue a corresponding purchase order to Scientist.com for those Supplier Services (the “VWR PO”). Scientist.com shall then, as soon as possible and in any event within 2 Business Days forward a corresponding purchase order to the Supplier (“Scientist.com PO”). All such communications will be identified by a unique identifier generated within the Platform. Each SOW agreed between you and Supplier shall govern the Supplier Services set forth therein and shall come into effect and become binding upon the issuance of the Scientist.com PO to the Supplier in question containing the same unique identifier as the SOW in question. For the avoidance of doubt, no physical signature is required to establish the SOW and all SOWs and purchase orders will be issued pursuant to the terms of the Supplier Agreement and these Terms. Any number of SOWs may be executed pursuant to the Supplier Agreement.
If you and the Supplier agree to amend an SOW after purchase of the Supplier Services under the original or previous SOW, the Supplier shall issue to you a revised SOW and you will purchase the Supplier Services under that amended SOW through the VWR shopping cart. VWR shall then promptly issue a corresponding amended VWR PO to Scientist.com, who in turn shall as soon as possible but in any event within 2 Business Days issue a corresponding Scientist.com PO to the Supplier. Amendments to SOWs between you and the Supplier shall become effective upon the date that Scientist.com issues of a corresponding amended Scientist PO to Supplier.
Where pursuant to these Terms, the Supplier Agreement and/or SOW (as applicable) a Supplier issues a refund to Scientist.com of compensation paid for the Supplier Services, Scientist.com shall, within 10 Business Days of receipt of such refund, pass such monies to VWR, who in turn shall refund such monies to the Client’s account. Where pursuant to these Terms, the Supplier Agreement and/or SOW (as applicable) a Supplier cancels an invoice issued to Scientist.com in relation to Supplier Services, Scientist.com shall promptly cancel its corresponding invoice to VWR and VWR shall, in turn, promptly cancel its invoice for such Supplier Services to Client.
If you request that Scientist.com place an order that has been initiated by you acting outside of the Platform, that order shall be deemed a “Purchase Order” under the Supplier Agreement. The supplier with which you placed the order in question shall be deemed a “Supplier” as set forth in the Supplier Agreement, the description of services agreed between you and the Supplier shall constitute an “SOW,” and the Supplier Services requested shall be deemed “Supplier Services,” all as set forth in and subject to the Supplier Agreement.
Scientist.com reserves the right to immediately halt any sale of Supplier Services on the Platform, prevent or restrict access to the Platform, take any other action to restrict access to or availability of any listing, or generally take any action not prohibited by applicable law.
6. Paying for Supplier Services
Client agrees to pay for purchases of Supplier Services made through the Platform as set forth below. To the extent this section conflicts with the Supplier Agreement, this section shall take precedence. Save as set forth in these Terms, in relation to any other conflict between the Supplier Agreement and these Terms, the Supplier Agreement prevails.
The compensation is exclusive of shipping, value added tax, sales tax or similar taxes, which if payable, shall be borne and paid by Client against the provision of an invoice.
In addition to any taxes or additional charges or fees set forth in an SOW, estimated taxes and/or shipping charges will be included in your VWR shopping cart, but these amounts are estimates only and final tax and shipping charges will be included in your invoice. You are solely responsible for any taxes, surcharges, duties and/or shipping-related charges related to your transactions with the Supplier (excluding Supplier’s taxes on its income, property, or employees). For the avoidance of doubt, neither Scientist.com nor VWR shall be the importer or exporter of any goods purchased by Client pursuant to the Supplier Agreement. Client and Supplier shall agree between them in the SOW which of them shall be responsible for all matters and payments relating thereto.
In return for performance of Supplier Services, you shall pay the sums set forth in your invoice. Unless agreed otherwise by the Parties and the relevant Supplier, payment on individual invoices you receive from VWR in respect of Supplier Services shall be net thirty (30) days from the date you receive the respective invoice(s) from VWR. Summary invoices, if any, will be due as agreed.
Payments are to be made in the currency set forth in the SOW, and payment shall include applicable taxes and other charges such as government imposed surcharges which may be required to pay or collect with respect to the Supplier Services. If you are exempt from sales taxes, you must provide the proper documentation to VWR at the time of ordering. If you default on any payment, the Supplier may, at Supplier’s option and without prejudice to Supplier’s, VWR’s, or Scientist.com’s other lawful remedies, delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the SOW.
Client agrees that Client is responsible for any Client obligations or payment of any other fees set forth in these Terms, the Supplier Agreement and the respective SOW, including any late payment fees agreed between Supplier and Client.
Scientist.com will charge Supplier a transaction fee for sales of Supplier Services facilitated through the Platform (“Transaction Fee”). The Transaction Fee is based on the total payment received from the Client less any service related shipping charges, applicable taxes or credit card transaction fees. Scientist.com reserves the right to change or modify the Transaction Fee at any time in its sole discretion. If the Transaction Fee is applicable, such fee and related payment term will be delineated by Scientist.com in the Client Request for Proposal received by Supplier. Once delineated in the Client Request for Proposal, the Transaction Fee and payment terms cannot be changed without the Supplier’s consent. Client is not responsible for including the Transaction Fee or related payment term in the Client Request for Proposal. Estimates and SOWs issued by Supplier to Client will include the Transaction Fee in the total price quoted.
Supplier can transmit an invoice to Scientist.com for the amount set forth in the respective SOW through the Platform in accordance with the Supplier Agreement. Scientist.com will, on receipt of the invoice, send an invoice for a corresponding sum to VWR as soon as reasonably practicable. On receipt of the invoice from Scientist.com, VWR shall promptly send an invoice for a corresponding sum to the Client.
Unless otherwise instructed by Client in writing, all invoices and supporting documentation should be sent to Client in accordance with the details provided by Client to VWR in their VWR account.
For the avoidance of doubt, for Supplier Services requiring a down payment prior to initiation, VWR will collect the down payment from the Client as set forth in the SOW and promptly wire it to Scientist.com’s bank account. Scientist.com shall then wire such payment to the Supplier’s bank account within 4 Business Days (in the State of California) of clearing the Client’s down payment received from VWR.
Once you have paid VWR in full for the Supplier Services completed by the Supplier, you will have no further payment obligation to VWR, Scientist.com or Supplier in relation thereto.
You will provide VWR, concurrent with each payment, with remittance information in sufficient detail to allow VWR to properly apply payments or credit memos to outstanding receivable(s).
Save as set forth in these Terms, Scientist.com agrees to protect all information that is disclosed by Client on the Platform and not to distribute or allow access to the information to any other third party without the prior written consent of the disclosing party, nor will Scientist.com make use of your information except in the performance of rights or obligations under these Terms and/or the Supplier Agreement. For the avoidance of doubt, Client understands that by disclosing information on the Platform to Suppliers, Client is providing such information to Suppliers directly itself and this information shall not be deemed to be provided to Suppliers by Scientist.com.
The Supplier’s obligations of confidentiality to you are set forth in the Supplier Agreement.
All information and data delivered or made available to you by another Party, and/or Supplier or any of its/their affiliates (“Discloser”) or relating to a Discloser and/or its business, know how, Supplier Services and/or other business affairs derived by you, in the performance of these Terms, the Supplier Agreement, performance of any Services and/or usage of the Platform, including but not limited to timeline entries, quote requests, pricing, SOWs, orders, change orders and invoices that are communicated in or outside the Platform is the proprietary and confidential information of the Discloser (the “Disclosed Information”). You shall protect and maintain in confidence the Disclosed Information and not distribute or allow access to the Disclosed Information to any other third party without the prior written consent of the Discloser, nor will you make use of the Disclosed Information except as strictly necessary in the performance of rights or obligations under these Terms or the Supplier Agreement. You will, at Discloser’s option, either destroy or return to the Discloser or Discloser’s affiliate, upon request, all Disclosed Information and documents and other tangible media on which the Disclosed Information is recorded. You shall inform your employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations and you shall be responsible for any breach of these provisions by such individuals. The obligations in this Section 7 shall not apply to Disclosed Information which: (a) is or becomes generally available to the public through no breach of this or any other confidentiality obligation; (b) was lawfully in your possession prior to the receipt of such Disclosed Information from the Discloser without an obligation of confidentiality; (c) is or has been received form a third party without restriction on disclosure and without breach of agreement or other wrongful act by you; (d) is independently developed by you without regard to or use of the Disclosed Information of the Discloser. Nothing in these Terms shall prevent you from disclosing Disclosed Information pursuant to a request of any court, government or governmental agency or as required by applicable law; provided, however, that you shall give Discloser prompt notice of the required disclosure (to the extent permitted by law), and shall provide Discloser with reasonable assistance to the extent Discloser seeks a protective order or other means to preserve the confidentiality of the information required to be disclosed. You agree and undertake that the Discloser may enforce this provision against you, either directly or as a third party beneficiary to these Terms, and that you shall be directly liable to the Discloser for breach of this provision.
Notwithstanding anything to the contrary set forth in the Supplier Agreement, to enable VWR and Scientist.com to work together to make the Platform available for the benefit of you and Suppliers, and because VWR shall provide for the ordering, invoicing and payment for Supplier Services purchased by you from Suppliers via the Platform, VWR shall have access to all Disclosed Information on the relevant SOWs, POs, and invoices, and VWR shall have the same access to the Platform and Disclosed Information on it (including without limitation correspondence between you and Suppliers) as Scientist.com, you and VWR agree, with respect to such Disclosed Information, that you hereby consent to the provision of and access to the Disclosed Information to VWR by Scientist.com, agree that such provision and access shall not constitute a breach of any provision of the Supplier Agreement by Scientist.com (including without limitation, clause 3c of the Supplier Agreement) and that the Supplier Agreement shall be deemed varied and construed accordingly and with immediate effect in respect of the Platform, notwithstanding clause 16 of the Supplier Agreement.
VWR hereby warrants, undertakes and represents to you and Scientist.com as follows:
VWR shall treat all Disclosed Information as confidential; provided, however, that VWR may disclose Disclosed Information relating to pricing, and other Disclosed Information reasonably necessary to promote, market, sell and distribute the Platform to VWR's customers. For the sake of clarity, VWR shall not publicly disclose pricing information which relates to a specific transaction and identifies a Supplier as the provider of the relevant Supplier Services to third parties not involved in such transaction. Save as set forth in these Terms, VWR agrees to protect all Disclosed Information and not to distribute or allow access to the Disclosed Information to any other Party without your prior written consent. For the avoidance of doubt, VWR is responsible for maintaining the confidentiality of specific details of individual timeline posts, estimates, SOWs, and/or purchase orders. All Disclosed Information shall be retained in confidence by VWR in accordance with these Terms and used for no purpose other than for the matters contemplated by these Terms (the “Purpose”).
Nothing in these Terms (including the Supplier Agreement) shall prevent VWR or Scientist.com from disclosing Information pursuant to a request of any court, government or governmental agency or as required by applicable law; provided, however, that VWR or Scientist.com (as applicable) shall give you prompt notice of the required disclosure (to the extent permitted by law), and shall provide you with reasonable assistance to the extent you seek a protective order or other means to preserve the confidentiality of the information required to be disclosed. In the event of a conflict between this clause and the Supplier Agreement, this clause shall prevail.
VWR shall be directly liable to you for breach of VWR’s obligations of confidentiality set forth in these Terms.
The obligations of the Parties hereto with respect to Disclosed Information shall survive for seven (7) years after receipt of the respective Disclosed Information.
8. Warranties and Disclaimers
The Supplier’s representations and warranties to you with respect to the performance and quality of the Supplier Services are set forth in the Supplier Agreement, to which you are a third party beneficiary, and any SOW entered into between you and the Supplier.
If any Supplier Services proves defective or non-conforming, VWR's sole liability to you and your sole remedy from VWR under these Terms shall be for VWR to provide reasonable assistance in obtaining the warranty provided by the Supplier under the Supplier Agreement and/or SOW (as the case may be).
The liability of VWR under the foregoing warranty will not extend to any Supplier Services that are abused, altered or misused by you or any other persons or entities or that become defective or non-conforming through the actions or inaction of you or any other persons or entities. A defective or non-conforming Supplier Service shall not include Supplier Services that fail to meet any unique operating conditions or applications.
VWR HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS REGARDLESS OF THE PARTY MAKING SUCH WARRANTIES, CONDITIONS, OR GUARANTEES, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN ADDITION TO THE DISCLAIMERS SET FORTH IN SECTION 4 AND ELSEWHERE IN THESE TERMS, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, SCIENTIST.COM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SCIENTIST.COM DOES NOT WARRANT THAT THE PLATFORM WILL MEET CLIENT’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; THAT THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS/SERVICES INCLUDED ON THE PLATFORM WILL BE AS REPRESENTED BY SUPPLIERS; AVAILABLE FOR SALE AT THE TIME OF PLACING AN ORDER, LAWFUL TO SELL, OR THAT SUPPLIERS WILL PERFORM AS PROMISED.
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SCIENTIST.COM DISCLAIMS ANY AND ALL SUCH WARRANTIES.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
UNLESS OTHERWISE SPECIFIED IN WRITING, YOU EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK.
9. Entire Agreement
These Terms constitute the entire agreement between you and VWR with respect to your use of the Platform and receipt of the Supplier Services and supersede all prior and contemporaneous agreements claims, representations, and understandings between you and VWR, whether written or oral, in connection with the subject matter hereof.
These Terms, along with the Policies located on the Platform, acceptance of which is a condition of your use of the Platform, constitute the entire agreement between you and Scientist.com with respect to your use of the Platform and supersede and cancel all prior and contemporaneous agreements, claims, representations and understandings of you and Scientist.com, whether written or oral, in connection with the subject matter hereof.
The relationship of Client, VWR and Scientist.com to each other is that of independent contractor and nothing in these Terms shall render any such party an employee, worker, agent, partner, or joint venturer of another such party and no such party shall hold itself out as such. These Terms constitute a contract for the provision of the Platform and transactions related thereto, and not the performance of Supplier Services.
11. Use of Names
Neither VWR, Scientist.com nor the Client shall use the name or insignia of each other in any publication, press release, promotional material or other form of publicity without the prior written consent of such Party. The restrictions imposed by this section will not prevent any such Party from making any disclosure that is required by applicable law, rule or regulation provided that any such disclosure shall be governed by the confidentiality provisions set forth in these Terms.
12. Limitation of Liability
EXCEPT FOR A PARTY’S VIOLATION OF ITS OBLIGATIONS OF CONFIDENTIALITY IN NO EVENT WILL SCIENTIST.COM, VWR, OR CLIENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM THESE TERMS, THE PLATFORM, THE USE THEREOF, OR THE TRANSACTIONS THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THESE TERMS, AND EXCEPT FOR A PARTY’S VIOLATION OF ITS OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT WILL SCIENTIST.COM’S OR VWR’S AGGREGATE LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THESE TERMS, THE PROVISION OF SUPPLIER SERVICES ORDERED THROUGH THE PLATFORM, OR TRANSACTIONS RELATED THERETO, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, EXCEED THE LESSER OF (A) $1,000,000 OR (B) THE AGGREGATE AMOUNT OF FEES ACTUALLY COLLECTED BY SCIENTIST.COM OR VWR RESPECTIVELY FROM CLIENT FOR THE SUPPLIER SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.
13. Export Controls
Products (including information or tangible materials) purchased or received as part of the Supplier Services under the Supplier Agreement may be subject to export control laws, restrictions, regulations and orders of the United States and other jurisdictions. The Client agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any such product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation. The Client represents and warrants to Scientist.com and VWR that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Supplier Services under the Supplier Agreement. The Client shall be responsible for obtaining any license to export, re-export or import as may be required.
You represent that you will not use the Supplier Services in violation of any applicable laws and regulations, including without limitation the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
Client, VWR, and Scientist.com each represents and warrants to each other that: (a) it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“U.S. FCPA”), and that it will comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction which are applicable to the parties’ business activities hereunder; (b) no principal, partner, officer, director or employee of such party is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to such parties’ business activities hereunder; and (c) no such party shall offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a “Government Official”) to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the local government to effect or influence the decision of such government in order to assist such party in its performance of its or their obligations under these Terms or to benefit the other such parties. Failure to comply with this section shall be deemed a material breach of a material provision of this Agreement and each non-breaching Party shall have all remedies available at law or equity against the breaching Party.
15. Applicable Law
Save as set forth in these Terms, these Terms are governed by the laws of Delaware, without regard to its principles of conflict of laws, and any dispute of any sort that might arise between you, Scientist.com, and/or VWR shall be subject to the laws of the State of Delaware. Any dispute arising between you and VWR shall be litigated in the state or federal courts located in the State of Delaware. For clarity, the Supplier Agreements and SOWs are governed by the laws specified therein.
The Supplier Agreement sets forth how the Client and Supplier shall resolve disputes relating to the Supplier Services.
Any dispute between you and Scientist.com relating in any way to your use of the Platform shall be submitted to confidential arbitration in Delaware, except that, to the extent you have in any manner violated or threatened to violate Scientist.com’s intellectual property rights, Scientist.com may seek injunctive or other appropriate relief in any state or federal court in either the State of California or Delaware, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise.
17. General Provisions
If any provision of these Terms or the application thereof becomes or is declared by a court of competent jurisdiction or other governmental entity to be illegal, void or unenforceable, the remainder of these Terms will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to affect the express intent of the parties hereto. The Parties further agree to replace such void or unenforceable provision of these Terms with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
Client shall not transfer or assign these Terms or its Scientist.com account without the prior written consent of Scientist.com. Any purported assignment or transfer without such consent shall be void.
Neither Scientist.com, VWR, nor Client will be considered to have waived any of its rights or remedies described in these Terms unless the waiver is in writing and signed by such Party. No delay or omission by any Party in exercising its rights or remedies hereunder will impair or be construed as a waiver.
Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
Any Party’s failure to enforce the strict performance of any provision of these Terms will not constitute a waiver of right to subsequently enforce such provision or any other provisions of these Terms.
No Party shall lose any rights hereunder or be liable to another Party for damages or losses (except for payment obligations) on account of failure of performance by the defaulting Party if the failure is occasioned by war, strike, fire, Act of God, earthquake, flood, lockout, embargo, act of terrorism, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence, intentional conduct or misconduct of the non-performing Party and such Party has exerted all reasonable efforts to avoid or remedy such force majeure.
Last updated: May 24, 2018
Research Services Agreement
This Research Services Agreement (“Agreement”) establishes terms and conditions by which a research services supplier (“Supplier”) can advertise, market or sell a service or product to be provided to a customer (“Client”) through Scientist’s online marketplaces or through the Scientist Concierge service (collectively, the “Platform”). Any Supplier desiring to advertise, market or sell a service or product through the Platform may do so only pursuant to the express terms and conditions of this Agreement. For the purposes of this Agreement, each reference to Supplier shall refer to the supplier agreeing to the terms and conditions of this Agreement as supplemented or amended by a Statement of Work (“SOW”), and each reference to “Service” or “Services” shall refer to the specific service(s) or product(s) advertised on the Platform or to be provided to a Client as further agreed between the Supplier and Client and set forth in a respective SOW agreed between the Client and Supplier through the Platform (as the context requires). Any Client, as well as such Client’s Affiliates (as defined below), desiring to use the Platform has separately agreed with Scientist to be an intended third party beneficiary under this Agreement and may use the Platform only pursuant to the express terms and conditions of this Agreement. Each reference to Scientist in this Agreement shall mean The Assay Depot, Inc. (d/b/a Scientist.com) (“Scientist”, “Scientist.com”, “Assay Depot” or “AD”). In this Agreement “Affiliates” means with respect to a party, any person, corporation or other entity that controls, is controlled by, or is under common control with either party. For the purposes of this definition only, “control” means; i) to possess directly or indirectly, the power to direct the management or policies of such person, corporation or other entity, whether through ownership of voting securities or by contract relating to voting rights or corporate governance, or ii) to own directly or indirectly 50% or more of the outstanding voting securities or other ownership interests of such person, corporation, or other entity, iii) in the case of a partnership, control of the general partner.
b. Eligibility Only parties that can lawfully enter into and form contracts under applicable law may use the Platform. By accepting the terms and conditions of this Agreement, Supplier hereby represents and warrants to Scientist and Client that Supplier has the ability to enter into and form contracts, including this Agreement, and to the extent such acceptance is made on behalf of any entity or other organization, the individual making such acceptance is authorized to bind such entity or other organization to the terms and conditions of this Agreement.
2. Orders & SOWs
For any Service that Client wishes to have performed by a Supplier, Client may use the Platform to send a request for proposal or other information (“Request for Proposal”) to suppliers or potential suppliers of such Services. Subject to having agreed to be bound by the terms of this Agreement, Supplier may respond to such Request for Proposal by using the Platform to send an Estimate (“Estimate”) or Statement of Work (“SOW”), to Client for such Services to Client for such Services. Client may review and if necessary, or desired, comment on any Estimate received from Supplier, and Client and Supplier may use the Platform to further communicate with respect to such potential Services and to create an Scientist SOW which will constitute part of the Agreement. The SOW will include a description of the Services, deliverables, the turn-around time, the service cost (including, as applicable, delivery, upfront payments, taxes, milestone payments and payment requirements) and any other relevant information. The SOW may refer to supplemental documents with information not contained in or directly attached to the SOW. The information contained in these supplemental documents is considered part of the corresponding executed SOW. At such time, if any, as Client determines to purchase such Services, Client may issue a purchase order to Scientist to that effect through the Platform (“Purchase Order”). Scientist shall then as soon as possible and in any event within two (2) Business Days forward a corresponding purchase order to Supplier (“Scientist Purchase Order”). All such communications will be identified by a unique identifier within the Platform. Each SOW agreed between Client and Supplier pursuant to this Agreement shall govern the Services set forth therein and shall come into effect and become binding upon the issuance of the Scientist Purchase Order to Supplier containing the same unique identifier as the SOW in question. For the avoidance of doubt, no physical signature is required to establish the SOW and all SOWs and Purchase Orders and Scientist Purchase Orders will be issued pursuant to the terms and conditions defined in this Agreement. Any number of SOWs may be executed pursuant to this Agreement.
Supplier and Client may agree to amend an SOW by Supplier issuing a revised SOW and Client issuing an amended Purchase Order accepting the revised SOW. Any such amendments shall become effective upon the issue of a corresponding amended Scientist Purchase Order to Supplier, which Scientist shall issue within two (2) Business Days of the Client issuing the amended Purchase Order to Scientist via the Platform. Any varying or additional general terms and conditions contained in any SOW, Purchase Order, Scientist Purchase Order or other written order confirmation, notification or document issued by Supplier or Client in relation to the subject matter hereof shall be of no effect, save as set forth in this Agreement. Any such varying or additional terms contained in any SOW or other written order confirmation must reference the specific section of this Agreement to be amended and be agreed upon in writing, as part of the SOW submission process, by the Supplier, Scientist and authorized signatory within the Client to be effective and binding. For the avoidance of doubt no changes can be included as part of an attachment within the SOW. Each SOW shall start on the commencement date specified in the SOW. Business Day means Monday through Friday except for federal or state holidays in the place of business of the Supplier.
In certain instances, Clients may request that Scientist place orders that have been initiated by Clients acting outside of the Platform. Any such purchase order shall be deemed a “Purchase Order” under this Agreement. The supplier in question shall be deemed a “Supplier” as set forth herein and agrees to be bound by the terms and conditions of this Agreement. Furthermore, and as a consequence of the aforesaid, the description of services agreed between Client and the Supplier off the Platform shall constitute an “SOW” and the services contained therein shall be deemed “Services”, all as defined in this Agreement.
a. Sales of Services and Products; Representations; Warranties. Any Supplier who has one or more Services offered for sale through the Platform agrees to perform the Service(s) pursuant to the terms and conditions of this Agreement and the SOW.
By offering a Service through the Platform, Supplier represents and warrants to Scientist and Client that: (i) Supplier has the right and ability to sell such Service, (ii) the Service listing is true and correct and is not misleading or otherwise deceptive in any manner, (iii) subject to section 3g below, Supplier shall perform the Service as specifically described in said listing and the SOW, and for the avoidance of doubt, in the event of any conflict between the SOW for specific Services and said listing, the SOW shall prevail, (iv) Supplier has full power and authority, and has taken all necessary actions and has obtained all necessary authorizations, licenses, consents and approvals required, to execute and perform Services in accordance with this Agreement and SOWs, (v) subject to section 3g below, the entering into of this Agreement and the performance of Services in accordance with its terms and the SOW(s) does not, and will not, breach or conflict with any other agreement or contractual obligation of Supplier, (vi) neither Supplier nor any of Supplier’s personnel engaged in the Services have been debarred or are subject to debarment or have otherwise been disqualified or suspended from performing scientific or clinical investigations or otherwise subjected to any restrictions or sanctions by the FDA or any other governmental or regulatory authority or professional body with respect to the performance of scientific or clinical investigations (a “Debarred Person”), and Supplier shall not use in any capacity, in connection with the Services or any SOW, any Debarred Person, and (vii) except in cases where the Client paying for the Services in question is a governmental body, governmental agency or national lab, the Services and SOWs are not intended to be part of any US government-funded grants or activities undertaken by Supplier and have not been funded in whole or in part by the US government and, consequently, any results conceived pursuant to this Agreement shall not be subject to the conditions of 37 CFR Parts 401 and 404. To the extent applicable, Supplier agrees to comply with all applicable U.S. Federal Acquisition Regulations and applicable laws and regulations of the U.S. Small Business Administration, including, but not limited to, the Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals clause of Section 8(d) of the Small Business Act.
Supplier agrees that any order for Services that Supplier receives as a result of a Scientist Purchase Order or a Request for Proposal conveyed via the Platform shall be placed through the Platform.
Supplier shall maintain during the term of the Agreement insurance coverage of the types and in the amounts typically carried by entities providing such services under the Agreement in the pharmaceutical or research area. Supplier will provide to Client and/or Scientist upon written request certificates of insurance evidencing its insurance coverage and limits
Upon termination of this Agreement, Supplier shall complete any and all SOW’s entered into with Clients prior to the termination of this Agreement and this Agreement shall apply to such Services as though it were still in full force and effect.
The parties and Client acknowledge that the Services may be experimental in nature and that some Client Materials or Supplier-provided materials may be inherently unstable. For the avoidance of doubt, the remedies in this section shall not apply where the Supplier has complied with its obligations under this Agreement and the agreed upon SOW(s) and if: i) such error results solely and directly from any inherent instability of the Client Materials or Supplier-provided materials; or if ii) such error results solely and directly from the fact that the Services are experimental in nature. Where in Client’s reasonable opinion the Services are invalid or unacceptable directly as a result of such matters, Client’s sole obligation in relation thereto shall be to pay a reasonable proportionate sum of the compensation for all work done by Supplier which Supplier can evidence to Client’s reasonable satisfaction is in compliance with this Agreement up to that point.
c. Client Materials, Client Property, Client Samples and Confidentiality. For purposes of this Agreement, (i) “Client Materials” means all materials, samples (including Client Samples and including all parts, progeny and derivatives of such materials and samples), documents, data and information that Client provides to Supplier or other information with respect to Client and /or its Affiliates that Supplier learns in the course of performing Services and/or as a result of entering into this Agreement and/or using the Platform or associated websites and (ii) “Client Property” means all data, results, work product, inventions, documentation, deliverables, know how, reports, and other information created, developed, written, conceived or made as a result of or in connection with performing the Services, and all intellectual property rights thereto ((other than improvements that relate solely and exclusively to Supplier’s background technology (“Background Technology Improvements”)). For the avoidance of doubt, Client Property shall also include any and all processed Client Materials created in the course of the Services. Supplier will treat all respective Client Materials and all respective Client Property as confidential and proprietary to Client for 7 (seven) years after receipt of the respective information. For the avoidance of doubt, all information disclosed by Client to Supplier with regard to a Platform request, no matter in which form, including without limitation via Platform messages, teleconferences, phone calls, face-to-face meetings and emails, are considered Client Materials, regardless of whether an SOW is created. At Client’s request and instruction, Supplier shall return to Client or confirm destruction of Client Materials and/or Client Property. Unless explicitly stated in the SOW, Background Technology Improvements and any intellectual property thereto shall belong to and be owned by Supplier and shall not be included in any reports or Client Property provided to Client. Supplier will not transfer or disclose any Client Materials or Client Property to any person except to the extent such transfer or disclosure of such Client Materials or Client Property: (i) is made only to Supplier’s employees, consultants or representatives who owe an obligation of confidentiality to Supplier no less restrictive than the confidentiality and non-use terms set forth herein and (ii) is necessary for purposes of providing the Services and (iii) Supplier assumes responsibility for compliance with this Agreement by such employees, consultants or representatives.
Save as set forth in the Policies in relation to Personal Data and this Agreement, Supplier and Scientist agree to protect all information that is disclosed on the Platform and not to distribute or allow access to the information to any other party without the prior written consent of the disclosing party, nor will a party make use of any of the other party’s Information except in the performance of rights or obligations under the terms and conditions of this Agreement. For the avoidance of doubt and save as set forth in the Policies in relation to Personal Data and this Agreement, both parties are responsible for maintaining the confidentiality of specific details of individual timeline posts, Estimates, SOWs, and/or POs.
Supplier agrees not to perform any physical, chemical or biological analysis or testing, or reverse engineer any Client Materials or other materials or samples provided by Client (“Client Samples”), other than as set forth in the respective SOW, nor to attempt any determination of the identity or structure of Client Materials and/or Client Samples, except as required to perform the SOW. Under no circumstances shall Supplier use the Client Samples and/or Client Materials in humans. Under no circumstances shall the Client use Supplier-provided material in humans unless the SOW provides to the contrary.
The Client Materials supplied pursuant to this Agreement and Client Property: (a) are and shall remain the exclusive property of Client; (b) shall be used by Supplier only for the Services and shall at all times remain solely under Supplier’s control; (c) shall be stored and handled in accordance with any instructions provided by Client (and if none, in accordance with industry best practice) and in accordance with all applicable laws and regulations; and (d) shall, at Client’s option and request, be returned to Client or destroyed and Supplier shall not make any further use of the Client Materials and/or Client Property. In addition, if any Client Materials remain after completion of the Services, at Client’s option, they shall be returned in full to Client or destroyed. In the case of a request from Client for destruction of Client Materials, Supplier will provide confirmation of destruction in writing to the Client.
The transfer of the Client Materials by Client to Supplier shall not constitute a sale of the Client Materials or an option or license in or to any rights, title or interest in or to the Client Materials. Further, Client Materials may be the subject of issued patents and pending applications covering, amongst other things, the Client Materials, salts thereof, pharmaceutical compositions thereof, processes for the preparation of the Client Materials, methods of treatment using the Client Materials and uses of the Client Materials. Nothing in this Agreement grants any rights to Supplier under any patent or patent applications except as may be necessary for conducting the Services.
d. Client Samples Handling. Supplier acknowledges and agrees that the Client Samples may be experimental in nature and that not all of the characteristics of the Client Samples may be known. Supplier shall use the Client Samples in compliance with all applicable laws, rules, regulations, guidelines and requirements and with prudence and appropriate caution in any experimental work. Client shall provide all necessary information it has in its possession relating to the safety, health and environmental aspects of the Client Samples and the Services. In addition, Client shall inform Supplier of any potential process hazards of which it has knowledge and which relate to the Client Samples and the Services. Notwithstanding any of the foregoing, Supplier shall be wholly accountable and liable for the safety, health and environmental aspects of all work performed by or on Supplier’s behalf and shall have management systems, which: (a) ensure the risks and impact of any activity undertaken are assessed; and (b) ensure that actions are taken to mitigate against any hazards identified. Supplier shall promptly inform Client in writing in case of any Safety, Health and Environmental (“SHE”) incidents at Supplier’s or its sub-contractor’s premises in connection with the performance of the Services. Further Supplier shall forward without undue delay, at the latest within three (3) days in written form to Client any unexpected information/finding, which indicates or permits to deduce a (potential) serious health hazard associated with the Client Samples, and which (as a consequence) may have an impact on the benefit/risk profile of the Client Samples or the related product. All information provided by Client pursuant to this section is supplied in good faith and with the knowledge that Supplier remains accountable and liable for all SHE aspects of activities to be undertaken.
e. Ownership of Client Property. Supplier shall, and shall cause all individuals involved in the Services to, make full disclosure to Client of all Client Property. Supplier agrees that Client (or such person as Client shall designate) shall own all right, title and interest in and to all Client Property. Supplier hereby assigns and transfers, and shall cause all individuals involved in the Services to assign and transfer, without additional consideration, to Client (or its designee) all right, title and interest in and to any and all Client Property throughout the world. Supplier represents and warrants that Supplier, and/or any individuals involved in the Services, have the right to assign the Client Property to Client. Client has the right to file patent applications on the Client Property in Client’s name and at Client’s expense as well as to prosecute such patent applications and enforce any resulting patents or other intellectual property originating from such patent applications as Client deems fit.
At Client’s request and Client’s reasonable expense, Supplier shall cooperate with Client and shall cause all individuals involved in the Services to cooperate with Client and execute documents, take all actions necessary and provide all declarations necessary to perfect Client’s or its designee’s ownership of such Client Property, to apply for patent protection for patentable Client Property in Client’s name and to further prosecute or enforce the patent applications or any resulting intellectual property.
All intellectual property residing in Supplier or Client or its/their Affiliates or Scientist or its Affiliates at the signing of this Agreement and/or prior to entering into any SOW and/or generated independently by the respective party independently of the Services shall remain vested in the party owning the same and no licence is granted from one to the other unless explicitly stated in this Agreement.
Client hereby grants to Supplier a non-exclusive royalty-free licence to its background intellectual property solely for Supplier to perform the Services and only to the extent reasonably necessary for such purpose.
For the avoidance of doubt, Client may fully exploit the Client Property as it sees fit, and Supplier agrees to hold harmless Client in connection with such exploitation.
f. Response Time. Supplier agrees to use commercially reasonable efforts to provide an initial response to a Client enquiry within a period of two (2) Business Days. If requested by the Client, Supplier agrees to use a messaging system provided by Scientist to maintain Client anonymity.
g. Additional or Different Client Terms. Supplier acknowledges that in addition to the terms specified in this Agreement, Client may request Supplier to accept and Supplier may accept additional or different terms (“Client Terms”). Any Client Terms agreed between the Client and Supplier shall be set forth in an SOW. Without prejudice to and subject to Sections 1a and 2, in the event of a conflict between this Agreement and any SOW, the SOW shall govern, but only with respect to Client and only to the extent there is a conflict. In the case where Supplier has a separate agreement(s) with the Client (“Client-Supplier Agreement”), this Agreement shall not impact any services to be provided by Supplier to Client under such Client-Supplier Agreement on or off the Platform save as set forth below. Where a valid and effective Client-Supplier Agreement exists between Client and Supplier the scope of which covers Services ordered by Client in an SOW via the Platform, the terms of that Client-Supplier Agreement shall apply to such SOW and the SOW shall be deemed to be an SOW or purchase order (as the case may be) covered by such Client-Supplier Agreement. In such cases, the terms of this Agreement shall also apply to such SOW(s), save in the event of a conflict, in which case the terms of the Client-Supplier Agreement shall prevail. However, notwithstanding the above, and for the avoidance of doubt, the provisions of Section 12 of this Agreement (“Terms Governing Purchase of Service”), shall govern in the event of any conflict with Client Terms, any SOW or Client-Supplier Agreement.
h. Records. Supplier shall prepare and maintain complete, accurate, organized and legible records of all documentation relating to the Services as necessary for patent and regulatory purposes and in full compliance with all applicable laws, rules, regulations, guidelines and requirements, including Good Laboratory Practices, Good Manufacturing Practices and Good Clinical Practices. Notwithstanding the foregoing sentence, Supplier shall retain all such documentation for five (5) years after the completed or terminated Services (the “Retention Period”). Supplier shall, if requested by Client, submit copies of the documentation to Client during the Retention Period. Such records and documentation shall, for the avoidance of doubt, be deemed to be Client Property for the purposes of this Agreement. Notwithstanding the foregoing, before any such documentation is destroyed, Supplier shall notify Client of the intention to destroy it and afford Client the opportunity of taking possession of such documentation.
i. Subcontractors. This Agreement and each SOW is personal to Supplier. Supplier shall not sub-contract all or any of its rights and responsibilities under this Agreement or any SOW without the prior written consent of Client. Such consent shall not relieve Supplier from any liability or obligation under this Agreement and Supplier shall ensure that any sub-contractor complies with all relevant provisions of this Agreement and each SOW and shall be responsible for the acts, omissions, defaults or negligence of its sub-contractors, agents or servants as fully as if they were acts, omissions, defaults or negligence of itself. Supplier shall ensure that, so far as applicable, all duties and obligations it has under this Agreement and all SOW(s) shall be included in any contract permitted by Client that it enters into with any sub-contractor. Supplier shall use reasonable efforts to obtain and maintain copies of documents relating to the obligations performed by such Affiliates and Subcontractors that are required to be provided to the Client under this Agreement.
j. Ethical Standards. Supplier will perform this Agreement and the Services and operate its business in compliance with the high ethical standards described in Scientist’s Global Compliance Standard, and incorporated herein by reference and as amended from time to time, in particular those principles related to “Anti-Bribery and Anti-Corruption” practices and any additional codes of practice or standards specified in the applicable SOW. Supplier will not: (a) take any action that will cause Client or Scientist to be in breach of any applicable laws for the prevention of fraud, bribery, corruption, racketeering, money laundering or terrorism, including the US Foreign Corrupt Practices Act and the UK Bribery Act, and/or (b) offer, pay, request or accept any bribe, inducement, kickback or facilitation payment, and shall not make or cause another to make any offer or payment to any individual or entity for the purpose of influencing a decision for Client’s benefit. Any material breach or violation by Supplier of these representations, warranties and undertakings shall give Client the right to terminate any or all SOW’s with immediate effect and be relieved of any obligations relating to this Agreement or such SOW(s) or related invoices (as applicable).
k. Trade Controls. Supplier represents, warrants and undertakes to Client and Scientist that Supplier is not on any applicable official national or international sanctioned party lists and that performance of this Agreement will not violate applicable embargo regulations. Scientist and /or Client has the right, at Scientist’s or Client’s sole expense, to conduct screening checks on Supplier, including verification of Supplier’s identity, including full name, country location and address, against official national and international sanctioned party lists and embargo regulations. If the screening indicates that Supplier is an international sanctioned party or are in violation of embargo regulations, Scientist may terminate this Agreement for breach immediately upon written notice and Client may terminate any or all SOW(s) with immediate effect and be relieved of any obligation relating to this Agreement or such SOW(s) or related invoices (as applicable).
i) Supplier and Clients may decide to share Personal Data (as defined in the EU General Data Protection Regulation) excluding Sensitive Data (which shall have the meaning assigned to the term “Special Categories of Personal Data” in the EU General Data Protection Regulation) relating to themselves, their employees and other third parties via the Platform ("Service Data"). As these are business to business transactions, it is expected that Service Data to be shared will be basic e.g. business contact names and email addresses.
The relationship between Scientist and Supplier is non-exclusive. Subject to the express terms of this Agreement, Supplier can continue to offer services through any other marketing channels including but not limited to the use of an in-house sales force, distributors or Affiliates, or through its own corporate website.
5. Term of Agreement and SOW’s
b. Termination of SOW(s).
(v) Any invoice, together with the other information required pursuant to Section 5b(iv), shall be transmitted by Supplier to Scientist no later than sixty (60) days after the effective date of termination and Scientist shall forward a corresponding invoice to Client no later than 10 Business Days thereafter. Payments as set forth in Section 5b(iv) shall constitute full and complete settlement of all claims of Supplier in connection with the relevant SOW terminated pursuant to Section 5b(ii). All notifications between Client and Supplier pursuant to this Agreement shall be issued via the Platform and/or to the contacts at the addresses set forth in the relevant SOW.
Scientist retains the right to immediately halt any sale of any Service on the Platform; prevent or restrict access to the Platform; take any other action to restrict access to or availability of any listing; or generally take any action not prohibited by applicable law. Scientist retains the right to display and/or edit in good faith Client reviews of the Services. Scientist shall be entitled to use summary statistics generated through the use of the Platform and other similar “meta” information generated through the use of the Platform, provided that in each case, any Client and/or Supplier identifying information and/or any Client Property is removed from such data or information and no Client-specific or Supplier-specific information is disclosed. Notwithstanding the foregoing and for the avoidance of doubt, Scientist may not terminate or halt any SOW’s save in accordance with section 5b(ii).
Supplier consents to receive communications from Scientist by email to the email address provided by Supplier upon registration for the Platform/establishing its account and Scientist consent to receive communications from Supplier via the appropriate email address provided in the Platform. Email notices are deemed received the Business Day after transmission if they are sent to such address. Each Party agrees that all agreements, notices, disclosures and other communications that one Party provides to the other electronically satisfy any legal requirements that such communications be in writing. Even if a court were to find that email communication as defined in this paragraph does not constitute a written communication, each Party has consented to such delivery and waived its right to seek damages or assert any other claims based on not receiving written communication from the other Party to the extent such communication was provided in accordance with the terms hereof.
Supplier will not, and will cause its Affiliates not to, directly or indirectly disclose, convey or use any data or information acquired by Supplier or its Affiliates from Scientist or its Affiliates or otherwise through the Platform (collectively, “Scientist Transaction Information”). Supplier may disclose such Scientist Transaction Information as necessary for the Supplier to perform its obligations under this Agreement, provided that the Supplier ensures that each recipient of such Scientist Transaction Information uses the information only for such limited purpose and complies with all restrictions hereunder applicable to Supplier related to such Scientist Transaction Information. For the avoidance of doubt, this Section 8 does not apply to Client Materials, which are covered instead by the provisions of Section 3c.
The Platform and all information, content, materials, products (including software) and other services are provided on an "As Is" basis. Except as expressly set forth in this Agreement, Scientist makes no representations or warranties of any kind, express or implied, and SPECIFICALLY DISCLAIMS (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (ii) that the Platform or associated websites will meet Supplier’s requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; or (iii) any implied warranty arising from course of dealing or usage of trade. To the full extent permissible under applicable law, Scientist disclaims any and all such warranties. Supplier expressly agrees that your use of the Platform is at your sole risk. WITH EXCEPTIONS FOR GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, BREACHES OF CONFIDENTIALITY OR VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS, NEITHER Scientist Nor Client NOR SUPPLIER SHALL be liable for any indirect, incidental, punitive or consequential damages, arising from this agreement, the platform, or the website.
Supplier agrees to defend, indemnify and hold harmless Scientist, Client and its/their Affiliates (and their respective officers, directors, employees, agents and representatives) from and against any and all Losses (as defined below) that any of such parties or third party beneficiaries may incur or sustain, or to which any of such parties or third party beneficiaries may be subjected, arising out of or relating to third party claims relating to: (i) any breach of Supplier’s representations, warranties, or obligations set forth in this Agreement; (ii) any content Supplier provides to Scientist, including in connection with the advertisement, offer, sale or return of any Services; (iii) any infringement by Supplier of any intellectual property or proprietary rights of another party; or (iv) the Services; provided that Supplier shall have no indemnification obligations hereunder with respect to any Losses to the extent that such Losses are caused by (1) the gross negligence or reckless or willful act or omission of Scientist or Client, as applicable, their Affiliates, agents, servants, or employees, or (2) any Losses indemnified by Scientist hereunder.
Scientist agrees to defend, indemnify and hold harmless Supplier and/or Client and its/their Affiliates (and their respective officers, directors, employees, agents and representatives) from and against any and all Losses (as defined below) that any of such parties or third party beneficiaries may incur or sustain, or to which any of such parties or third party beneficiaries may be subjected, arising out of or relating to any third party claims relating to breach of Scientist’s representations, warranties, or obligations set forth in this Agreement; provided that Scientist shall have no indemnification obligations hereunder with respect to any Losses to the extent that such Losses are caused by (1) the gross negligence or reckless or willful act or omission of Supplier, its Affiliates, agents, servants, or employees, or (2) any Losses indemnified by Supplier hereunder.
If any indemnified party chooses to seek indemnification under this section, such party shall promptly give notice to the indemnifying party of its claim of indemnification and the basis therefore. Failure to notify an indemnifying party in accordance with this section shall not relieve the indemnifying party of its obligation of indemnity unless such failure materially prejudices the indemnifying party's rights. An indemnifying party shall be given a reasonable opportunity by the indemnified party to participate at its own expense in the defense of any third party claim as to which it receives a notice of claim of indemnity. Notwithstanding the foregoing, the indemnifying party may assume the defense of such claim with counsel chosen by it and reasonably approved by the indemnified party. If the indemnifying party assumes the defense of the claim, the indemnifying party shall not be liable for any fees and expenses of counsel for the indemnified party incurred thereafter in connection with the claim. No offer of settlement, settlement or compromise shall be binding on either party hereto without its prior written consent (which consent shall not be unreasonably withheld) unless such settlement fully releases the other party without any liability, loss, cost or obligation to such party.
For purposes hereof: "Losses" means any and all claims, actions, losses, damages, judgments, liabilities, penalties, interest, costs and expenses (including reasonable attorneys’, accountants’ and consultants’ fees and expenses, and any expenses incurred in connection with investigating, defending against or settling any claims or related actions to the extent incurred in accordance with the terms hereof), regardless of whether the applicable proceeding was instituted by a person or entity.
Subject to the terms and conditions of this Agreement, Supplier grants Scientist and its Affiliates a non-exclusive, worldwide, royalty-free, non-sub licensable license and right to exercise all copyright, service mark and trademark rights, and rights of publicity over the content Supplier submits to Scientist and its Affiliates (the "Copyright, Servicemark and Trademark Rights") solely for the purpose of operating the Platform as described in this Agreement (the “License”). Each use of the Copyright, Servicemark and Trademark Rights by Scientist shall be subject to Supplier’s reasonable usage guidelines provided by Supplier from time to time. Except for the limited rights expressly set forth herein, all right, title and interest to such Copyright, Servicemark and Trademark Rights shall be owned by and remain with Supplier and Scientist shall not take any action inconsistent with Supplier’s ownership rights in the same. For the avoidance of doubt, this Article 11 shall not apply to Client Property.
12. Terms Governing Purchase of Service
For certain Clients and transactions, Scientist will handle the billing for the Services and be responsible for transmitting payment to Supplier within fifteen (15) days of receiving payment from Client. The Client Request for Proposal received by the Supplier will specify whether Scientist will handle the billing and the details of the Transaction Fee described below. Payment terms with respect to Clients and transactions where Scientist will handle the billing are set forth in this Section 12.
a. Transaction Fee. Scientist will charge Supplier a transaction fee for sales facilitated through the Platform (“Transaction Fee”). The Transaction Fee is based on the total payment received from the Client less any service-related shipping charges, applicable taxes or credit card transaction fees. Scientist reserves the right to change or modify the Transaction Fee at any time, in its sole discretion. If an Scientist Transaction Fee is applicable, such fee and related payment term will be delineated by Scientist in the Client Request for Proposal received by the Supplier. Once delineated in the Client Request for Proposal, the Transaction Fee and payment terms can’t be changed without the Supplier’s consent. For the avoidance of doubt, Client is not responsible for including the Transaction Fee or the related payment term in the Client Request for Proposal. By responding to the Client Request for Proposal and providing a SOW inside or outside of the Platform, the Supplier agrees to the Transaction Fee and related payment term. Estimates and SOW’s issued by Supplier to Client will include the Transaction Fee in the total price quoted.
c. Client Billing. Where Scientist will handle the billing for the Services pursuant to this Section 12, Scientist is responsible for invoicing the Client for Service(s) agreed to be provided to Client by Supplier pursuant to SOW(s). Supplier can transmit an invoice to Scientist for the amount set forth in the respective SOW through the Platform as soon as Supplier completes the Services in the respective SOW and delivers a final report or Service result/deliverable to Client or makes it available to Client through the Platform, unless the SOW states otherwise, in which case the timing of the invoices shall be as set forth in the SOW. Scientist will, on receipt of such invoice, send an invoice for a corresponding sum to Client within two (2) Business Days. The payment term begins the day that Client receives the invoice from Scientist.
For the avoidance of doubt, for Services requiring a down payment prior to initiation, Scientist will collect the down payment from the Client as set forth in the SOW and wire it to the Supplier's bank account within four (4) days of clearing the Client's down payment.
d. Service Disputes. In the event Client does not accept the Service, or deems the final report/deliverable (as applicable) insufficient, Client will notify Scientist and Supplier within a commercially reasonable time. In such event, Supplier agrees to use commercially reasonable, good faith efforts to resolve any disputes relating to the Service. If such dispute cannot be resolved within thirty (30) days of such notice, the disputants agree to hold a conference call or meeting within thirty (30) days of the expiration of such thirty (30) day period, attended by at least one representative of Client and Supplier (with the power to bind such party and with decision-making authority with respect to dispute in issue) and a representative of Scientist, regarding such dispute, to attempt in good faith to negotiate a resolution thereto prior to pursuing other remedies. During a dispute, no interest shall accrue on relevant invoices issued by Supplier to Scientist, or Scientist to Client.
If, within thirty (30) days after such CONFERENCE CALL OR MEETING, the Supplier and Client have not succeeded in negotiating a resolution of such dispute, the dispute shall BE SUBJECT TO RESOLUTION AS SET FORTH IN section 14 below.
e. Non-Circumvention of Platform. Supplier agrees not to engage in transactions with the intent of circumventing the Platform and Transaction Fee, for example, agreeing to a purchase outside of the Platform for a request initiated within the Platform, or structuring follow up, repeat Services, extensions of Services or additions to Services outside of the Platform when initially initiated within the Platform. Clients and Suppliers are free to transact outside of Scientist for any new project that is initiated outside of the Platform.
In the event Supplier violates this non-circumvention clause and it is deemed, based on the reasonable determination of Scientist; Scientist may charge Supplier the Transaction Fee(s) that would have been earned by Scientist, but for the circumvention.
This Agreement, the transactions contemplated hereby and all disputes between the parties and/or Client under or related to this Agreement or the facts and circumstances related thereto, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without giving effect to any principles of conflicts of laws.
14. Dispute Resolution.
Nothing in this Agreement shall prevent Scientist or Client from bringing proceedings (including but not limited to seeking injunctions) at any time in any competent court anywhere in the world in relation to Client Property, Client Materials, confidential information or intellectual property.
For the avoidance of doubt, references in this Section 14 to the parties shall mean Scientist, Supplier and/or Client (as applicable).
15. Services Involving Human Biological Samples or Animals
a. Entire Agreement. This Agreement, including any terms and conditions incorporated herein by reference, any SOWs (including for the avoidance of doubt, any Client Terms), the Platform’s Policies and, where relevant, Client-Supplier Agreement, constitute the entire agreement of: (1) the Supplier and Client; and (2) Supplier and Scientist with respect to the subject matter hereof, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties, whether written or oral, in connection with the subject matter hereof.
b. Relationship. Supplier’s relationship with Client and/or Scientist will be that of independent contractor and nothing in this Agreement or any SOW shall render Supplier (or any individual engaged under this Agreement or any SOW) an employee, worker, agent or partner of Client or Scientist and Supplier shall not hold itself out as such and shall procure that any individual engaged under this Agreement or any SOW shall not hold themselves out as such. This Agreement constitutes a contract for the provision of Services and not a contract of employment and accordingly Supplier shall be fully responsible for and shall indemnify Scientist and/or Client for and in respect of:
c. Third-Party Beneficiaries. The parties specifically acknowledge and agree that this Agreement has been entered into by Scientist and Supplier in order to confer benefit to Client and its Affiliates, and as such Client and its Affiliates are intended third party beneficiaries of all terms of this Agreement, Client or its/their Affiliates can enforce such terms of this Agreement and pursue all forms of redress it is entitled to under the law or in equity at any time and from time to time as if they were a party to this Agreement. Except as specifically provided in the immediately preceding sentence, this Agreement does not provide and shall not be construed to provide third parties with any remedy, claim, or cause of action or privilege.
d. Severability. If any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction or other governmental entity to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the express intent of the parties hereto. The parties and Client further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
e. No Waiver. Neither Scientist nor Supplier nor Client will be considered to have waived any of its/their rights or remedies described in this Agreement unless the waiver is in writing and signed by Client, Scientist and/or Supplier (as applicable). No delay or omission by Scientist or Supplier or Client in exercising its rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Scientist's or Supplier’s or Client’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of right to subsequently enforce such provision or any other provisions of this Agreement.
g. Assignment. This Agreement and any of the rights, interests or obligations hereunder may be not be assigned by Supplier without the prior written consent of Scientist, except in the context of a merger, acquisition or sale of all or substantially all of Supplier’s assets. Any assignment in violation of this section shall be null, void and of no legal effect. No SOW may be assigned by Supplier without the written consent of the Client.
h. Use of Names. Except as permitted by Section 11, (i) Scientist shall not mention or otherwise use the name or insignia of Supplier in any publication or press release without the prior written consent of Supplier, and (ii) Supplier shall not mention or otherwise use the name or insignia of Client or Scientist in any publication, press release, promotional material or other form of publicity without the prior written consent of such party. The restrictions imposed by this section will not prevent Supplier from making any disclosure that is required by applicable law, rule or regulation provided that any such disclosure shall be governed by the confidentiality provisions set forth in this Agreement.
i. Force Majeure. No liability shall result from delay in performance or non-performance by either of the Parties caused by Act of God, fire, flood, war, government action or other circumstances beyond the reasonable control of the non-performing Party (collectively “Events of Force Majeure”). Any Party claiming benefit of this clause shall without delay so notify the other Party in writing of the occurrence and on the cessation of an Event of Force Majeure. The non-performing Party shall use all reasonable efforts to eliminate, cure or overcome an Event of Force Majeure and to resume performance of its obligations with all possible speed