STANDARD TERMS & CONDITIONS
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- Scope: Ingredient Integrity, LLC dba Ingredient Identity (hereafter “II”) agrees to provide the services described in the Quotation in accordance with this Agreement and with any protocols pertaining thereto that have been approved by the Customer and II.
- Standards: II’s services provided will meet standards generally prevailing in the industry and regulations that are applicable to the Project specified.
- Regulatory Inspections: II will notify Customer of any regulatory inspections directly relating to the Project. Customer accepts reasonable and documented costs charged by a regulatory authority for inspections directly related to the Project.
- Scope Changes: Customer may request reasonable Project scope changes, including deliverables and the deliverables schedule (“Changes”). Customer must submit requested Changes in writing, and the requested Changes require written approval by II and Customer to be considered binding on the parties. Customer agrees to pay II for any additional services and/or additional expenses resulting from Changes approved in writing by both parties.
- Invoicing: II will invoice Customer per the Cost Proposal set forth in this Agreement. All invoices are due upon completion unless otherwise stated on the invoice corresponding to appropriate quotation. Payments not received after 10 days past the invoice date will be subject to a late payment fee of 2½% per month (or part of a month) for payments not received. Failure to bill for interest due shall not be a waiver of II’s right to charge interest.
- Taxes: Customer will pay any sales, use, gross receipts, compensating or other taxes, licenses, or fees (excluding II’s net income and franchise taxes) to be paid by II to any tax jurisdiction arising from the Project.
- Shipment: II may arrange from time to time the shipment of products, raw materials, samples and components on behalf of Customer at a specified service charge. All shipments will be made via commercially available common carriers by II and will be delivered F.O.B. II’s facilities. Customer assumes all responsibility for making claims against the common carrier in the event of loss or damage to Customer’s product, raw material, samples and components.
- Limitations of Liability: NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, II’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO II UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, II’S LIABILITY FOR LOSSES TO INGREDIENTS, PRODUCTS OR OTHER MATERIALS PROVIDED BY CUSTOMER, WHETHER OR NOT INCORPORATED INTO FINISHED PRODUCT, SHALL NOT EXCEED $5,000. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS OR DAMAGES TO GOODWILL, WHETHER OR NOT FORESEEABLE, ARISING FROM THE PROJECT.
- Confidentiality: All information marked or identified as confidential and disclosed by a party in connection with this Agreement shall be confidential information, unless such information is: (i) already known to the receiving party, as evidenced by written records; (ii) independently developed or discovered by the receiving party without the use of the disclosing party’s confidential information, as evidenced by written records; (iii) in the public domain other than through the fault of the receiving party; (iv) disclosed to the receiving party by a third party not in breach of a duty of confidentiality owed to the disclosing party; or (v) required to be disclosed by law, or court or administrative order; provided, that the receiving party first gives prompt notice thereof to the disclosing party. Neither party shall, without the other party’s prior written consent, use the confidential information of the other party or disclose such information to anyone other than employees of the receiving party or its affiliated entities who require such information to perform such party’s obligations under this Agreement. This Confidentiality provision shall survive for 7 years following termination of this Agreement.
- Intellectual Property: All intellectual property rights subsisting in or relating to the performance of the Project, including any calculations, data, specifications, papers, documents, any other items, materials, and information given provided by Customer to II or developed by II in the performance of the Project shall be the sole and exclusive property of Customer; provided, however, that II shall retain all intellectual property rights to non-Project-specific operating procedures, and/or laboratory techniques and procedures developed by II while performing the Project.
- Customer Obligations: Unless otherwise agreed to by the parties in writing, Customer is solely responsible for: (i) providing complete and accurate scientific data regarding the Project, (ii) review and approve all results to ensure conformity of such results with any Customer-provided specifications or requests, if applicable, (iii) formal release of materials prepared and/or reviewed by II, (iv) preparation of all submissions to regulatory authorities, and (v) performance of such other obligations of Customer set forth in this Agreement.
- Indemnification: Customer will indemnify and hold harmless II, its affiliates and their officers, directors, agents and employees against any third party claim arising directly or indirectly from: (i) the manufacture, promotion, marketing, distribution or sale of any Customer-provided materials and/or Customer’s products, (ii) use or exposure to any Customer-provided materials and/or Customer’s products, (iii) negligence or willful misconduct of Customer, or (iv) Customer’s breach of this Agreement. II will indemnify Customer for any third party claim arising from (i) any negligence or willful misconduct by II, or (ii) II’s breach of this Agreement.
- Force Majeure: Neither party will be liable for any failure to perform or for delay in performance resulting from any cause beyond its reasonable control, including without limitation, acts of God, fires, floods, earthquakes or other natural disasters; strikes or lockouts, power outages, facility shutdowns, failure of supplier or subcontractor, material shortages, embargoes, wars, hostilities or riots, shortages in transportation; provided, however, that if II’s inability to perform or delay exceeds ninety (90) days due to any such cause, Customer may terminate this Agreement without liability to Customer.
- Retention of Customer Records: Unless the parties otherwise agree in writing, II will retain reports and records (collectively “Records”) for seven (7) years from the date of record creation. After the seven (7) year period, II will make reasonable efforts to contact the Customer to determine either the return of the records to the Customer at Customer’s expense or the secure destruction of the records at II’s expense.
- Retention of Customer Materials: Unless the parties otherwise agree in writing, II will retain Customer-provided samples, supplies, and/or documents (collectively “Customer Materials) for one (1) year from the date of receipt. After the one (1) year period, II will make reasonable efforts to contact the Customer to determine either the return of the Customer Materials to the Customer at Customer’s expense or the destruction of the Customer Materials at Customer’s expense.
- Independent Contractor: It is expressly agreed that II and Customer shall be independent contractors and that the relationship between the two parties shall not constitute a partnership, joint venture or agency.
- Publicity: Neither party will make any press release or public disclosure regarding this Agreement or the transactions contemplated hereby without the other party’s express prior written consent, except as required by applicable law or by any governmental agency, in which case the party required to make the press release or public disclosure shall make reasonable efforts to obtain the approval of the other party as to the form, nature and extent of the press release or public disclosure prior to making the public disclosure.
- Authority: Customer grants II full authority to use any Customer Materials. Customer and II each represent and warrant that it has taken all necessary action on its part to authorize the execution and delivery of this Agreement and this Agreement has been duly executed and delivered on behalf of such party, and constitutes a legal, valid, binding obligation, enforceable against such party in accordance with its terms.
- Amendment & Precedence: This Agreement (including the Quotation and the Standard Terms and Conditions) constitutes the entire agreement of the parties related to the Project and may not be modified except in writing signed by both parties. The Standard Terms and Conditions supersede any conflicting terms and conditions set forth in the Quotation. This Agreement supersedes any previous written acknowledgement, statement or prior understanding between the parties related to the Project.
- Dispute Resolution: In the event of any dispute arising under this Agreement, senior executives of II and Customer shall first attempt to resolve the dispute. If the parties’ senior executives are unable to resolve such dispute within thirty (30) days, the matter shall be submitted to an arbitration proceeding in Orange County, CA and the parties shall share equally the filing fees, arbitration fees, or other costs of such proceedings, except that each party shall be responsible for its own attorney’s fees and other out of pocket arbitration expenses, unless the arbitrator decides otherwise. The proceeding shall then be conducted under the then prevailing rules for commercial arbitration of the American Arbitration Association, by a panel of three(3) arbitrators reasonably accepted by both parties, one of whom must have substantial experience in the field of contract testing services. The arbitrators shall have the authority to permit limited discovery to the extent required by a party in order to establish its case. The decision of the arbitrators shall be final and binding and may be entered and enforced in any court of competent jurisdiction. Any monetary award shall be payable in US dollars, free of any tax, offset or other deduction. Any determination of the arbitrators shall be confidential to the parties hereto and binding solely on the parties hereto.
- Survival: The Standard Terms and Conditions shall survive termination or expiration of this Agreement.
- Project Documents: Project Documents include, but are not necessarily limited to: Protocols, Test Methods, Reports, and Specifications and other digital materials including, but not limited to emails, attached documents therein, electronic files, etc. II shall deliver Project Reports per the Project Deliverables section of this Agreement. II will issue revised Project Documents at no charge if the revision is due to any II errors or omissions. If Customer requests a revised Project Document for any reason other than II errors or omissions, II reserves the right to invoice the Customer up to $500 for each revised document. Any other arrangements regarding Project Document review and revisions must be specifically and separately negotiated. II reserves the right to deliver Project Documents via common carrier or electronic media.
- Pass-Through Costs: Cost of materials procured, fees paid and/or other services obtained on behalf of Customer in order to complete the Project(s) incurred by II will be passed-through to Customer with a 20% handling charge.
- Termination: Either party may terminate this Agreement at any time by providing sixty (60) days written notice. Upon receipt of any such notice of termination from the Customer, II will promptly scale down the affected portion of the Project and avoid (or minimize, where non-cancelable) any further Project-related expenses. In the event of termination by the Customer, II reserves the right charge Customer Termination Fees as follows: (i) fully executed Agreement but no executed Protocol and no Project work performed, $1,000; (ii) fully-executed Agreement and fully-executed Protocol but no Project work performed, $2,000. In the event of termination by the Customer, if Project work has been performed prior to the termination effective date, the Customer will pay II on the termination effective date an amount equal to II’s charges for all work performed prior to such effective termination date plus an amount equal to any non-cancelable commitments made by II prior to notice of termination, as well as any applicable third-party cancellation fees. II will invoice the Customer for the cost of any samples, materials, reference standards, equipment, and supplies purchased by II specifically for the Project.