DCN Dx Standard Terms and Conditions

These DCN Dx Standard Terms and Conditions (“Terms”) are incorporated into and are an integral part of the DCN Proposal to Client, and are binding upon the parties. Capitalized terms not otherwise defined in these Terms shall have the meaning set forth in the Proposal. The work to be performed by DCN under the Proposal (as described above) is referred to as the “Services”.

BINDING: The Proposal including these Terms and the attached appendices constitute the entire agreement (“the Agreement”) between the parties respecting the Services and supersede any and all prior agreements, promises, negotiations, or representations, written or oral, between the parties relating there to. No representation, promise, or inducement regarding the Services has been made by either party that is not expressly set forth in the Agreement. If there is a conflict between these Terms and the Proposal, these Terms and Conditions shall control unless otherwise expressly set forth in writing to the contrary.

All Services are performed on a Commercial Best-Efforts basis. DCN will make commercially reasonable efforts to ensure that the outcome of the Services is successful, but DCN is not responsible should additional work become necessary or should the Services demonstrate that the Client’s project is not feasible. Fees shall be due for Services performed in accordance with the Proposal, irrespective of results.

MATERIALS, OUTSIDE SERVICES: Any Proposal cost breakdown does not include non-standard project materials, and outside services; these will be billed separately as described in the Proposal. Non-standard materials, travel and outside service expenses will only be incurred with the Client’s prior written approval.

PERFORMANCE: The Services shall be performed in material accordance with the terms of the Proposal and these Terms. DCN EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER DCN EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.

INVOICES AND PRICING: Client shall pay invoices issued in accordance with the Proposal within 30 calendar days of invoice date except as otherwise specifically agreed in the Proposal. Late payments shall accrue interest of 0.5% per month. In addition to its other rights, DCN may at its option cease Services or terminate the Agreement for breach if payments are delinquent or other breaches. All pricing is exclusive of any (a) use, value added, sales and excise taxes, and any other similar taxes or charges of any kind imposed by any governmental authority on any amounts payable by Client, (b) tariffs, duties, customs fees or similar fees charged by governmental entities and (c) any currency exchange fees, credit card fees and wire transfer fees. DCN reserves the right to charge a reasonable per diem fee for each employee dedicated to Client’s project (as set forth in the Proposal) if such employees are not able to work on the project due to Client delays. DCN shall have the right to adjust prices quoted in the Proposal upon 30 days’ prior written notice to Client, if DCN experiences increases in its actual material costs or labor costs that it did not reasonably expect, with such price increases reflecting the actual cost increases.

INDEPENDENT CONTRACTOR: Client shall have no authority to control the manner in which DCN performs the Services. DCN and Client are independent contractors and not agents, partners or joint ventures. DCN shall not sign any agreements or make any commitments on behalf of Client without express written authorization from Client.

INTELLECTUAL PROPERTY: If so indicated in the Proposal, intellectual property that DCN creates exclusively for Client pursuant to the Proposal (such as formulas, original works of authorship or similar work product) that DCN conceives, develops, or makes expressly and exclusively for Client as set forth in Proposal (“Works”), shall be “works-made-for-hire” and upon payment in full, Client shall own all rights of every kind or nature in and to the Works. In such cases, DCN will render reasonable assistance to Client in preparing or prosecuting or defending any patent application or patent within the Works that names DCN personnel as an inventor, but at DCN’s standard hourly rates. To the extent that any such Works do not qualify for legal protection as a “work made for hire,” DCN irrevocably assigns to Client all of DCN’s right, title, and interest into such Works (upon payment in full). Notwithstanding the foregoing, the term “Work” as used herein shall not include (a) any property owned or created by DCN prior to its engagement by Client, (b) DCN’s tools, techniques, business or technical processes or other similar property, (c) any formulas, works of authorship or similar work product developed during the term of this Agreement (unless the Proposal expressly states they are intended to be a Work exclusively owned by Client), nor (d) any of DCN’s trade secrets or confidential information (all of the foregoing are collectively referred to herein as the “DCN IP”). DCN shall retain exclusive title to all DCN IP. DCN may grant to Client a nonexclusive, royalty free license to the DCN IP, but only in connection with Client’s use of the Works. As may be set forth in the Proposal, Client’s right to use certain DCN IP may be subject to an integration fee or license, as set forth in the Proposal, and such right shall not permit sale or assignment of any DCN IP.

Unless expressly set forth in the Proposal, DCN does not warranty that any Work, Service or any assay developed does not infringe upon the intellectual property rights of third parties or is otherwise free of patent or other intellectual property right infringement. It is the Client’s responsibility to verify to their own satisfaction that they may use any intellectual property rights associated with the Work, including the use, manufacturing or sale of products or devices.

DCN shall have the right to use and to refrain from using (in DCN’s discretion) Client’s name, likeness and biography in connection with its business and in advertising, marketing and promotion of its products and services.

CONFIDENTIALITY: “Confidential Information” means (i) all information which is disclosed by either party (“DISCLOSER”) to the other (“RECIPIENT”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement. Confidential Information may include, but not be limited to, trade secrets, documentation, formulas, data, inventions, techniques, marketing plans, employee information, financial information, and other confidential information concerning Discloser’s business or organization. In addition, Confidential Information may include information concerning any of Discloser’s past, current, or possible future products or methods, including information about Discloser’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software). Discloser’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know”. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Discloser; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Discloser and provided further that diligent efforts are undertaken to limit disclosure. The foregoing language shall not amend or replace any separate Confidentiality Agreement or Nondisclosure Agreement which has been signed by the parties, which shall remain in full force and effect.

LIMITATION OF LIABILITY: Neither party shall be liable to the other party or any of its affiliates for any consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or good will) in connection with this Agreement, whether or not liability is based on breach of contract, tort, strict liability, breach of warranty, failure of essential purpose or otherwise, even if it is advised of the likelihood of such damages. The foregoing limitations and exclusions of liability shall not apply in the event of gross negligence or willful misconduct of a party. The foregoing limitation and exclusion of liability shall not limit any of either party’s rights to recover fully in respect of matters for which company has insurance coverage as set forth in this Agreement. Except for gross negligence or willful misconduct, DCN’s liability to Client under this Agreement shall not exceed the amount that Client has actually paid to DCN. No claims against DCN may be brought against it after the first anniversary of the date the services under the Proposal were performed.

LIMITED PRODUCT WARRANTY. To the extent the Proposal involves any physical products that DCN may produce, deliver or sell to Client (the “Products”), DCN expressly disclaims all representations or warranties, whether express or implied, including warranties of fitness for a particular purpose and merchantability to the extent permitted by law. DCN does not represent that the Products meet any particular governmental agency’s regulatory guidelines, rules or any applicable laws. Except as expressly set forth in this paragraph, the Products are provided by DCN on an “AS IS” basis. In particular, the Products are not intended to replace the clinical skill of a medical practitioner or a medical practitioner’s independent professional judgement regarding patient diagnostics or a patient’s treatment. Client acknowledges that it has not relied upon any representation or warranty about the Products made by DCN, or any person on DCN’s behalf, except as specifically provided in the Proposal or this paragraph.

SOLICITATION/HIRING OF EMPLOYEES: To the extent allowed under applicable law, during the term of this Agreement, and for a period of one year after the termination of this Agreement, Client, its officers, directors, agents, employees, or other representatives shall not recruit, employ, hire or solicit for employment (or consulting services) any of DCN’s officers, directors, employees, contractors or agents who provided services to Client directly or indirectly, or encourage them to leave their employment with DCN. The foregoing restrictions shall not apply to any employment of personnel through the means of advertisements, job postings, job fairs and the like and any employment where the individual has made the initial approach to Client. Client consents to DCN seeking injunctive relief in a court of competent jurisdiction to prevent or stop a violation of the provisions of this paragraph or the prior paragraph.

INDEMNITY: Client shall indemnify, defend and hold DCN harmless from and against any third party loss, cost, expense or liability (including reasonable attorneys’ fees) arising out of Services performed for Client to the extent performed in accordance with this proposal, including without limitation, personal injury and product liability claims. However, Client shall have no obligation to indemnify DCN for any claims arising out or as a result of (i) DCN’s material breach of the terms of the Agreement; (ii) personal injury to any employee of DCN arising or occurring during the conduct of the Services by DCN; or (iii) DCN’s gross negligence or willful misconduct. Client shall perform adequate due-diligence on all proposed projects and to adopt appropriate quality assurance procedures with respect to using the Services and any products manufactured in connection therewith. DCN shall indemnify, defend and hold Client harmless from and against any third party loss, cost, expense or liability (including reasonable attorneys’ fees) arising out of or as a result of (a) DCN’s gross negligence or willful misconduct, or (b) personal injury to any employee of DCN arising or occurring during the conduct of the Services.

TERMINATION: Except for custom manufacturing orders, Client shall have the right to terminate this Agreement at any time with or without cause by delivering not less than thirty days prior written notice. If Client terminates early (other than because of a DCN’s material breach of this Agreement), Client shall compensate DCN for all work properly performed and expenses incurred in accordance with this proposal (including third party cancellation costs, if the use of such third parties has been approved by Client) incurred up to the effective date of termination, to the extent such work and expenses are not covered by amounts that have been pre-paid by Client. In addition, Client shall pay to DCN DCN’s reasonable estimate of nonrecurring costs that DCN incurred to commence the project for Client. Upon any termination, DCN shall: (i) return to Client any prepaid funds which are unearned by DCN as of the effective date of termination; and (ii) perform such activities as may be reasonably requested by Client (provided Client pays for such services to smoothly transfer data and work product to date to Client). The provisions in the following paragraphs shall survive expiration or termination of this Agreement for any reason: “Intellectual Property”, “Confidentiality”, “Return of Property”, “Limitation of Liability” and “Governing Law.” Additional services that may be requested by Client for transfer will be provided at DCN’s then current hourly rates. Either party may terminate this Agreement immediately upon written notice if the other party enters into insolvency or bankruptcy proceedings of any sort.

RETURN OF PROPERTY: Upon termination of this Agreement or Client’s earlier request and payment in full, DCN shall provide to Client all Work and other deliverables worked on by DCN in providing the Services, together with any and all documentation containing or comprising Client Confidential Information. Notwithstanding the foregoing, DCN shall be entitled to keep copies of all such property for archival reasons or as may be required by law or any certification or licensing requirements.

NO THIRD PARTY BENEFICIARIES: The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.

ASSIGNMENT: This Agreement may not be assigned by either party without the prior written consent of the other; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Agreement, or in the event of its merger, consolidation, change in control or other similar transaction.

NO WAIVER: Failure of any party herein to enforce any of the terms or provisions of this Agreement shall not constitute a waiver of any right to enforce that term or provision in the future.

SEVERABILITY: Each of the provisions of this Agreement shall stand on its own, and in the event any portion of this Agreement is deemed invalid, unlawful, or unenforceable, the remainder of the Agreement shall remain in full force and effect, as though the invalid, unlawful, or unenforceable provision or provisions were originally deleted.

FORCE MAJEURE: Except for monetary payment obligations, neither party shall be liable for any failure to perform its obligations under these Terms and Conditions or the Proposal if it is prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, pandemics, strikes, war, and restraints of government.

MODIFICATIONS: Any modification to this Agreement will be effective only if it is in writing signed by the parties.

GOVERNING LAW/DISPUTE RESOLUTION: This Agreement is made and entered into in Carlsbad, California. This Agreement shall be governed by, construed, interpreted and enforced under the laws of the State of California, without regard to conflicts of laws or principles thereof. Any disputes or claims arising from or related to this Agreement or the services provided shall be submitted to and resolved exclusively by binding arbitration conducted before and in accordance with American Arbitration Association Commercial Arbitration rules. One arbitrator appointed under such rules shall conduct the arbitration. Arbitration shall be in Carlsbad, California, and the laws of California shall apply. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction.

ATTORNEYS FEES: The non-prevailing party in any arbitration or litigation shall pay the legal fees and expenses incurred by the prevailing party in such action.

AUTHORIZATION TO PROCEED: Client’s signature on the Proposal constitutes Client’s authorization to proceed with the project, and creates a binding contract.

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