COVID-19 LSA-Terms and Conditions

LABORATORY SERVICES AGREEMENT

TERMS & CONDITIONS

LAST UPDATED JUNE 26,2020

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

Our Customer Terms of Service is a contract between you (the Customer) and us (CERTIS ONCOLOGY SOLUTIONS) describing the services we will provide to you, how we will work together, and other aspects of our business relationship.

  1. Services. Certis the following: (1) specimen collection by nasopharyngeal swabbing, which shall be performed by licensed nurses (2) collection supplies (swabs, testing media, test kits), (3) sample analysis by Reverse Transcription Polymerase Chain Reaction (RT-PCR) analyses and (4) reporting to [Company] and governmental authorities as required by law.
  2. Confidentiality. Certis Oncology Solutions will treat as confidential all health-related information submitted by you, customers, or other visitors, in accordance with CDC, DHHS, and HIPPA regulations.
  3. Term and Termination.
    • This Agreement shall remain in full force and effect until terminated by either party pursuant to the terms specified herein in this Section 3.
    • Termination for Cause. Either party may terminate this Agreement and/or a specific Statement of Work upon written notice to the other party: (a) if such other party materially breaches this Agreement and/or a Statement of Work and such breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (b) or if the other party shall (i) become bankrupt or insolvent of file a petition to so become; (ii) make an assignment for the benefit of creditors; or (iii) have a receiver appointed for its assets, which appointment shall not be vacated within 60 (sixty) days after the filing.
    • Termination for Convenience. Either party may terminate this Agreement or a specific Statement of Work, with or without cause, upon thirty (30) days written notice to the other party.
    • Effect of Termination. In the event of any termination for any reason or expiration of this Agreement, with respect to a Statement of Work or in its entirety: (a) Certis shall cease all Services being performed (with the exception of any necessary wind-down); (b) Company shall make payment to Certis for all Services performed until the effective date of such expiration or termination, and all pass-through expenses and non-cancellable expenses relating to the Services incurred by Certis prior to the effective date of termination; (c) Certis shall return or, at Company’s written request and at Company’s expense, dispose of all remaining Study Drug or other Confidential Information provided to or obtained by Certis during the term of this Agreement (provided that if termination is solely with respect to a Statement of Work and there are other active Statements of Work at the time of such termination, Certis may retain Confidential Information to the extent necessary to perform such other Statements of Work); and (d), conditioned upon payment by Company to Certis of all fees due hereunder and/or under the applicable Statement(s) of Work, deliver to Company any Deliverables and Inventions (each as defined in Section 4 below) not previously delivered hereunder.
  4. Representations and Warranties.
    • Mutual Representations. Each party represents and warrants to the other party that: (i) such party is duly formed and validly existing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (ii) neither the execution nor the performance of this Agreement will result in the violation of any statute, regulation or judicial decree, or cause such party to breach any contractual commitment by which it is bound.
    • Certis Representations. In addition, Certis represents and warrants to Company the following: (a) each Certis employee engaged in the performance of Services hereunder is trained and duly qualified and has the experience and expertise to perform the Services set forth in the applicable Statement of Work; (b) Certis shall not enter into any agreement with, any third party that would interfere with Certis’ performance of the Services or any other obligation hereunder; (c) neither Certis nor any Certis employee engaged in the performance of Services is or has been debarred, or is under investigation by any government regulatory authority for a debarment action, pursuant to the U.S. Federal Food, Drug and Cosmetic Act, as amended, or any foreign equivalent thereof; and (d) Certis will adhere to all applicable federal, state, and local laws, rules and regulations.
    • Disclaimer of Warranty; Limitation of Liability. CERTIS ONCOLOGY SOLUTIONS AND ITS SUPPLIERS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE INFORMATION, SERVICES AND MATERIALS CONTAINED, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NONE OF CERTIS, ITS SUPPLIERS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS TEST RESULTS, SERVICES AND MATERIALS CONTAINED HEREIN ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, SERVICES AND MATERIALS PROVIDED ON THIS TEST; THEY ALSO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OF, OR INABILITY TO INTERPET THE RESULTS. ALL INFORMATION, SERVICES AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.

YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND RESULTS WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.

PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES.

  1. Mutual Indemnification. Each Party (the “Indemnifying Party”) agrees to defend the other Party, its affiliates and each of their respective officers, directors, employees, contractors and agents (each an “Indemnified Party”) from and against any action, claim, suit, investigation or other proceeding brought by a third party (a “Claim”) to the extent such Claim results from the Indemnifying Party’s breach of this Agreement or an IPA or the negligence, willful misconduct or fraud or violation of law on the part of the Indemnifying Party, its officers, directors, employees, agents or other representatives in connection with this Agreement. The Indemnifying Party will indemnify and hold harmless the Indemnified Party from any liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees and costs of defense) incurred by or levied against such Indemnified Party as a result of such Claim.
  2. Insurance. Certis shall maintain general liability insurance in such amounts as are customary for similar businesses. Certis shall provide to Company, upon request, certificates or other evidence of such insurance. Company shall maintain general liability insurance in such amounts as are customary for similar business. Company shall provide to Certis, upon request, certificates or other evidence of such insurance.
  3. Notice. Any notice required or permitted hereunder shall be in writing and shall be deemed given: (a) upon receipt of email confirmation, if sent by email to the party to receive such notice at the email address set forth below; (b) within two (2) business days if it is delivered by a reputable international courier service; or (c) on the fifth (5th) business day if it is delivered by first-class international mail, to the address set forth below or to such other address as is subsequently specified in writing:

If to Certis:

Certis Oncology Solutions, Inc.
4940 Carroll Canyon Road, Suite 120
San Diego CA  92121
USA

  1. Payment Terms.
    • Company shall pay Certis the fees and expenses specified in the applicable Statement of Work for Services performed thereunder.
    • Certis shall invoice Company for Services performed.
    • Company shall pay all invoices within thirty (30) days of Company’s receipt of such invoice from Certis. All invoices shall be deemed binding and conclusive upon the parties unless Company notifies Certis in writing of any disputes within five (5) days of receipt of such invoice, identifying with specificity the nature and extent of such dispute. Any such dispute shall not excuse Company’s obligation to pay the undisputed portion of the invoice. The parties shall attempt to resolve such dispute in good faith.  During the pendency of any such dispute, Certis shall reserve the right to suspend performance of its Services. Without prejudice to any other remedies available to Certis, interest on unpaid amounts shall be charged at the rate of one (1%) percent per month on amounts which remain unpaid after 60 (sixty) days from receipt by Company of the applicable invoice, from the due date until the date of actual payment thereof.
  2. Miscellaneous.
    • Entire Agreement; Amendment. This Agreement (including all attachments hereto) represents the entire understanding of the parties, and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties with respect to the subject matter of this Agreement.
    • Independent Contractor. Company and Certis expressly agree and understand that Certis is an independent contractor, and nothing in this Agreement nor the Services rendered hereunder is meant, or shall be construed in any way or manner, to create between them a relationship of employer and employee, principal and agent, partners or any other relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the provisions of this Agreement. Certis is not the agent of Company and is not authorized and shall not have the power or authority to bind Company or incur any liability or obligation, or act on behalf of Company. At no time shall Certis represent that Certis is an agent of Company.
    • Neither party may assign, sub-contract (except in the case of Certis to Permitted Subcontractors) or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
    • Claims and Disputes. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of California or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
    • Each provision of this Agreement shall be treated as a separate and independent clause, and the enforceability of any one clause shall in no way impair the enforceability of any other clauses herein. Moreover, if one or more of the provisions herein contained shall for any reason be held excessively broad so as to be unenforceable at law, the appropriate judicial body shall construe such provision by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with applicable law as it shall then appear.
    • Any waiver of a breach of any provision of this Agreement shall be in writing and shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof.
    • This Agreement may be signed in two or more counterparts, including by facsimile, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
    • Force Majeure. Neither Certis nor Company shall be liable for any failure to perform or delay in performing any obligations under this Agreement if such failure or delay is due to fire, flood, earthquake, strike or any other industrial disturbance, war (declared or undeclared), embargo, blockade, legal prohibition, riot, insurrection or any other cause beyond the control of such party preventing or delaying the performance of such obligations; provided that such obligations shall be performed immediately upon the termination of such cause and provided further that in the event of such failure or delay continuing for more than two (2) months the non-delaying party may, without incurring liability to the other, terminate this Agreement immediately by written notice to the other Party.