Terms & Conditions
These terms and conditions of service (the “Terms of Service”) shall, by themselves and as part of the Final Terms of Service, as defined in Section 13 hereof, govern all orders for the provision of services (the “Services”) from Alpenglow Biosciences Microscopy, Inc. (“Alpenglow Biosciences”) by the customer thereof (the “Client”).
BY ACCEPTING ANY SERVICE FROM ALPENGLOW BIOSCIENCES, CLIENT IS DEEMED TO HAVE AGREED TO ALL OF THESE TERMS OF SERVICE WITHOUT THE NEED FOR ANY EXECUTION OR DELIVERY BY CLIENT OR ALPENGLOW BIOSCIENCES OF ANY FURTHER INSTRUMENT, AGREEMENT OR OTHER DOCUMENT.
1. PRICE. The price for the Service shall be the price stated in Alpenglow Biosciences’s written proposal or quotation to Client for the Service (“Alpenglow Biosciences’s Quotation”). Alpenglow Biosciences’s Quotations are valid for a period of 90 days after issuance, unless superseded by a later quotation for the same Service, or as otherwise stated therein. Prices stated are exclusive of all taxes, fees, licenses, duties, levies or other governmental assessments (“Taxes”) and, unless otherwise stated in Alpenglow Biosciences’s Quotation, exclusive of all shipping and handling charges, freight and insurance. All Taxes related to Services shall be paid by Client (other than taxes assessed against Alpenglow Biosciences’s income), or in lieu thereof, Client shall provide Alpenglow Biosciences with a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by Client may be billed as separate items on Alpenglow Biosciences’s invoice to Client.
2. PAYMENT TERMS. Unless otherwise provided in the Alpenglow Biosciences’s Quotation, 50% of the total service fee is payable up front, and the remaining 50% payable upon making the Deliverable available for review in accordance with Section 4 hereof. The upfront payment is due prior to commencement of Services, and the final payment is due Net 30 days after the date of Alpenglow Biosciences’s invoice therefor. Alpenglow Biosciences, at its sole discretion, shall have the right to require alternative payment terms by Client as set forth in Section 3 hereof. If Client terminates Services prior to completion, then Client shall pay a prorated fee based on the actual time spent by Alpenglow Biosciences thereon. If payment is not received by the due date thereof, Alpenglow Biosciences may assess, and Client shall pay, a late payment charge at the rate of 1% per month (12% per year) or the maximum rate permitted by law, whichever is less, of the amount due from the due date to the date of payment. If Alpenglow Biosciences retains a collection agency or attorney to collect unpaid amounts, Alpenglow Biosciences may invoice Client for, and Client shall pay, all reasonable costs of collection, including without limitation reasonable attorneys’ fees.
3. CREDIT TERMS. Alpenglow Biosciences may, at any time and in its sole discretion, limit or cancel the credit of Client from Alpenglow Biosciences, as to time and amount, suspend Services, demand payment in cash before performance of Services, or demand other assurances of Client’s performance. If Client fails to agree and comply with the different terms of payment demanded, or fails to give adequate assurances of performance, Alpenglow Biosciences may, without prejudice to any other right or remedy Alpenglow Biosciences may have, by written notice to Client, treat such failure or refusal as a repudiation by Client of that portion of Client’s order not then fully performed, whereupon Alpenglow Biosciences may cancel all further performance, and any amounts unpaid for non-cancelled Services actually performed shall immediately become due and payable.
4. ORDER; DELIVERABLES; ACCEPTANCE. The receipt by Alpenglow Biosciences of any purchase order, statement of work or other order document from Client (collectively, “Order”) shall in each case be subject to the provisions of Section 13 hereof. Alpenglow Biosciences or its designee shall use commercially reasonable efforts to perform Services within a reasonable time after receipt of the Order, if a date is specified in such Order or otherwise agreed upon in writing by an authorized representative of Alpenglow Biosciences, on or before such date. Alpenglow Biosciences shall create and provide to Client the deliverables specified in the Order and made subject to Alpenglow Biosciences’s Quotation (the “Deliverables”). Alpenglow Biosciences will make such Deliverables available for viewing and downloading through a secure website for a period of fifteen days after notifying Client of their availability. Alpenglow Biosciences will extend Client’s online access to a Deliverable, or reupload an expired Deliverable, upon Client’s written request, subject to an additional fee as set forth in Alpenglow Biosciences’s Quotation. Client will have 60 days following the date of delivery to inspect the Deliverable and provide Alpenglow Biosciences written notice if it does not conform to the agreed upon specifications. In the event of a nonconformity, Alpenglow Biosciences’s sole liability, and Client’s sole remedy, shall be the reperformance of the Services and the creation of a new Deliverable. If Client has not provided written notice of a non-conformity within the 30-day inspection period, the Deliverable shall be deemed accepted.
5. SAMPLES. Client shall be responsible for all transportation and insurance charges in connection with the shipment of biological samples (the “Samples”) for testing. Unless otherwise stated in the Order, Client shall at all times retain title to the Samples. The Samples will be used solely in the provision of Services, under suitable conditions of operation. Alpenglow Biosciences shall not transfer the Samples to any third party without the prior written consent of Client. Alpenglow Biosciences acknowledges that the Samples are experimental in nature and may have unknown characteristics and therefore agrees to use prudence and reasonable care in the use, handling, storage and disposition thereof. Alpenglow Biosciences will destroy the samples within 60 days after completion of Services, unless otherwise provided in the Order or in written instructions from Client timely received by Alpenglow Biosciences. Any alternative disposition of the Samples shall be at Client’s sole cost and expense.
6. RECORDS. Alpenglow Biosciences shall maintain complete and accurate records reflecting the Services performed and the results obtained, including, without limitation, such data and materials as are required to be maintained pursuant to any applicable law (the “Records”). Alpenglow Biosciences shall maintain the Records for 1 year after the completion of Services, or such other longer amount of time as is required by applicable law. Prior to destroying any Records, Alpenglow Biosciences shall give Client at least 60 days prior written notice thereof, and an opportunity for Client to obtain a copy of such Records prior to destruction.
7. LIMITED WARRANTY. Alpenglow Biosciences warrants that (a) the Services shall be performed, and Deliverables shall be created and provided, in a good, professional and skillful manner and in accordance with all relevant professional and industry standards and applicable laws, and (b) the Services and Deliverables shall conform in all material respects to the specifications set forth in the applicable Order. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. ALPENGLOW BIOSCIENCES MAKES NO WARRANTY RELATING TO THE RESULTS OF THE SERVICES, THAT THE SERVICES OR DELIVERABLES, WILL ACHIEVE ANY SPECIFIC RESULTS OR BE USEFUL FOR ANY SPECIFIC PURPOSE, AND MAKES NO WARRANTY WITH RESPECT TO THE MERCHANTA-BILITY OR FITNESS FOR A PARTICULAR PURPOSE OF A DELIVERABLE.
8. INTELLECTUAL PROPERTY. Client shall own all patentable or non-patentable inventions, discoveries, and improvements made, conceived, or reduced to practice by Alpenglow Biosciences, solely or jointly with Client, in the course of or as a result of the performance of the Services (the “Client Inventions”). Client Inventions and Deliverables that constitute copyrightable matter under the Copyright Act of 1976, as amended, shall be deemed “works made for hire” and ownership therein shall vest in Client upon their creation. Alpenglow Biosciences hereby assigns all right, title, and interest in all other Client Inventions and Deliverables to Client, free and clear of all liens, claims, and encumbrances. Alpenglow Biosciences shall promptly take, and cause its employees to take, any and all actions reasonably requested by Client to effect the purposes of the foregoing, including but not limited to the execution of patent assignments or affidavits.
Notwithstanding the foregoing, Client acknowledges and agrees that Alpenglow Biosciences owns valuable intellectual property, including without limitation chemical and biological formulae and reagents, compositions, materials, methods and processes, algorithms, software (including source and object code), hardware, know-how, trade secrets and other information relating to the processing and analyses of tissue samples using light sheet fluorescence microscopy (the “Alpenglow Biosciences Intellectual Property”). Alpenglow Biosciences shall own all right, title and interest in all intellectual property that Alpenglow Biosciences, solely or jointly with Client, develops, conceives, invents, or first reduces to practice or makes in the course of performance of the Services that (a) is generally applicable to the processing and analyses of tissue samples using light sheet fluorescence microscopy; or (b) is an improvement to or derivative of the Alpenglow Biosciences Intellectual Property or Alpenglow Biosciences’s Confidential Information.
9. CONFIDENTIALITY. Each party agrees to hold the Confidential Information of the other party in strictest confidence and not to copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information of the other party to any third party, or utilize such Confidential Information for any purpose whatsoever other than as expressly contemplated by these Terms of Service or as otherwise agreed to in writing by the parties. Each party may only disclose the other party's Confidential Information to employees, representatives and consultants of such party who have a need to know such information and who are under a written obligation to comply with the nondisclosure obligations set forth herein. Each party agrees to notify the other party in writing of any suspected or known breach of the obligations or restrictions set forth in this Section 9. Notwithstanding the foregoing, any previously executed nondisclosure agreement between the parties shall continue in full force and effect, provided that to the extent of any inconsistency or ambiguity between such non-disclosure agreement and these Terms of Service, these Terms of Service shall take precedence and control and govern in all respects.
“Confidential Information” means all business, technical and other information of a party that is (a) not generally known or available to the public, or that is proprietary to the disclosing party; (b) maintained in confidence by the disclosing party; and (c) disclosed by the disclosing party to the receiving party in connection with these Terms of Service. Confidential Information does not include information (i) which is or becomes a matter of public knowledge, through no fault of the receiving party; (ii) the receiving party can demonstrate, by written documentation existing at the time of disclosure, were in its possession without any obligation of confidentiality prior to the disclosure by the disclosing party; (iii) that are disclosed non-confidentially to the receiving party by a third party having the right to do so; or (iv) is subsequently and independently developed by employees of the receiving party without use of or reference to the Confidential Information.
10. INDEMNIFICATION. Alpenglow Biosciences shall defend, indemnify and hold Client and its directors, officers, employees, agents and representatives harmless against all liabilities, damages, costs, expenses and claims arising from or based upon any legal action or proceeding brought by a third party against Client to the extent that such action is based on (a) Alpenglow Biosciences’s violation, misappropriation, or infringement of any proprietary, intellectual property, or patent right of any third party relating to Alpenglow Biosciences’s performance of Services pursuant to this Agreement or; (b) the material breach by Alpenglow Biosciences of any representation or warranty hereunder; or (c) any negligence, intentional misconduct, or failure to comply with the Final Terms of Service or applicable laws, except, in each case, to the extent such third party claim result from any of the circumstances described in clauses (a), (b), or (c) of the following paragraph.
Client shall indemnify and hold Alpenglow Biosciences and its officers, directors, employees, agents and representatives harmless against any and all liabilities, damages, costs, expenses and claims arising from or based upon any legal action or proceeding brought by a third party against Client to the extent that such action is based on (a) Client’s material breach of the Final Terms of Service; (b) any claim that (i) the composition of any Sample used by Alpenglow Biosciences violates, misappropriates, or infringes any proprietary, intellectual property, or patent right of any third party, (ii) the Samples were collected, provided to Alpenglow Biosciences or analyzed without the requisite informed consent from the source of such Alpenglow Biosciences, or (iii) the Samples were collected, provided to Alpenglow Biosciences or analyzed without the requisite approval by an institutional review board/ethics committee or similar body, or (c) Client’s use of the results of the Services, the Deliverables and the Client Inventions, except, in each case, to the extent such third party claim result from any of the circumstances described in clauses (a), (b) or (c) of the previous paragraph.
A party seeking indemnification shall (i) notify the other party in writing, describing in commercially reasonable detail the third party claim for which such party may seek defense and indemnity from the other party hereunder, within 45 days after becoming aware of such claim, (ii) make no admission of liability with respect to the claim, and (iii) cooperate with and provide reasonable assistance to the indemnifying party and at the indemnifying party’s reasonable expense, in the investigation, preparation, defense, and settlement or voluntary disposition of any third party claim. Neither party shall compromise, settle, or enter into any voluntary disposition of any third party claim, demand or action without the other party’s prior written consent.
11. FORCE MAJEURE. Alpenglow Biosciences shall not be liable for any delay or failure of performance, including without limitation failure to deliver, where such delay or failure arises or results from any cause beyond Alpenglow Biosciences’s reasonable control, including, but not limited to, pandemic, endemic, flood, fire explosion, natural catastrophe, military operations blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts of terrorism, plant breakdown, computer or other equipment failure, unusually severe weather, earthquake or other act of nature, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulations or any inability or delay in obtaining materials. In the event of any such delay or failure of performance, Alpenglow Biosciences shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and Alpenglow Biosciences shall also have the right to the extent necessary in Alpenglow Biosciences’s reasonable judgment, to apportion Services then available fairly among its various customers in such manner as Alpenglow Biosciences may consider equitable
12. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL ALPENGLOW BIOSCIENCES BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, PROCUREMENT OF SUBSTITUTE SERVICES, OR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ALPENGLOW BIOSCIENCES IS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, SUSTAINED BY CLIENT OR ANY OTHER PERSON OR ENTITY, ARISING OUT OF OR CAUSED BY ANY SERVICE, OR BY ALPENGLOW BIOSCIENCES’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, OR BY ALPENGLOW BIOSCIENCES’S BREACH OF THESE TERMS OF SERVICE. ALPENGLOW BIOSCIENCES’S LIABILITY FOR DAMAGES ARISING OUT OF THESE TERMS OF SERVICE OR ANY SERVICE PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ALPENGLOW BIOSCIENCES RECEIVED FROM CLIENT FOR THE SERVICE GIVING RISE TO SUCH CLAIM.
13. SOLE TERMS; CONFLICT OF TERMS. These Terms of Service, together with Alpenglow Biosciences’s Quotation (collectively, the “Alpenglow Biosciences Final Terms of Service”), (a) shall constitute the complete, exclusive and entire agreement between Alpenglow Biosciences and Client with respect to the purchase(s) of Services (unless other terms and conditions are expressly designated to be applicable by Alpenglow Biosciences in writing by a duly authorized Alpenglow Biosciences representative), and Alpenglow Biosciences’s offer to provide Services is expressly limited to such terms, and (b) shall control over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, between Client and Alpenglow Biosciences with respect to such purchase(s), and (c) shall control over and supersede and replace, to the extent not accepted in writing by Alpenglow Biosciences, any additional or different terms and conditions contained in any statement in any Order submitted by Client, which additional or different terms and conditions are hereby rejected and shall be void unless specifically so accepted in writing by Alpenglow Biosciences.
To the extent Client’s order documents and any terms and conditions contained therein materially alter the Alpenglow Biosciences Final Terms of Service, the Alpenglow Biosciences Final Terms of Service shall be deemed a counteroffer to any offer made by Client through Client’s order documents. Alpenglow Biosciences reserves the right to withhold the provision of any Services until such counteroffer has been accepted by Client, provided, however, that Client’s acceptance of a Deliverable shall be deemed final acceptance of and agreement to the terms of such counteroffer.
Except as otherwise provided in these Terms of Service, in the event of an inconsistency between these Terms of Service and the terms appearing on Alpenglow Biosciences’s Quotation or other agreement signed by an authorized representative of Alpenglow Biosciences, the terms appearing on Alpenglow Biosciences’s Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms of Service, and all other provisions of these Terms of Service shall remain in full force and effect.
14. DATA SECURITY. Alpenglow Biosciences has implemented and maintains an information security program that incorporates safeguards that ensure the security, confidentiality, and integrity of Confidential Information and that complies with applicable law. Alpenglow Biosciences shall promptly provide client written notice of any material data security breach. Such notice shall summarize in reasonable detail the circumstances of such breach, Alpenglow Biosciences’s reasonable assessment of the impact thereof on Client and, if applicable, individuals whose personal data is affected by such breach. Alpenglow Biosciences shall promptly investigate such data breach and take all necessary and appropriate action to remediate the effects of such breach and prevent its recurrence.
15. INDEPENDENT CONTRACTORS. The parties agree that each is an independent contractor engaged in the operation of its own respective business, that neither party shall be considered to be the agent, master or servant of the other party for any purpose, and that neither has any general authority to enter into any contract, to assume any obligations or to make any warranties or representations on behalf of the other. Further, nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, employer-employee or a joint venture relationship between Alpenglow Biosciences and Client. Alpenglow Biosciences shall be responsible for the payment and/or withholding (as applicable) of all wages, salaries, employment-related taxes, benefits and/or other compensation for all Alpenglow Biosciences’s employees.
16. CHOICE OF LAW; VENUE. Any contract between Alpenglow Biosciences and Client relating to Services, including as incorporated herein by reference and as specified at the beginning of these Terms of Service, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Washington, excluding its choice of law provisions. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, these Terms of Service shall be brought only in the federal and state courts located in King County, WA and each of the parties hereto consents to the exclusive jurisdiction of such courts in any such action or proceeding, waives any objection to venue laid therein and agrees not to plead or claim in any such courts that such proceeding brought therein has been brought in any inconvenient forum.
17. MISCELLANEOUS. No amendment or modification of Alpenglow Biosciences’s Quotation or these Terms of Service shall be binding unless in writing and signed by a duly authorized representative of each of Alpenglow Biosciences and Client. Alpenglow Biosciences’s failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. Headings are included for convenience of reference only and shall not constitute a part of these Terms of Service for any other purpose. If any provision of these Terms of Service is held to be invalid or unenforceable for any reason, such provision shall, to the extent of such invalidity or enforceability, be severed from these Terms of Service without in any way affecting the remainder of such provision or any other provision hereof, all of which shall continue in full force and effect.
Additional Policies: