WBR Laboratories, Inc.
1. General Terms. These terms and conditions (“Terms”) apply to your purchase of custom research solutions, including custom laboratory products and/or custom laboratory services (“Work”) from WBR Laboratories (“we” or “us”), according to the detailed description in the applicable quotation or other written statement of work, as submitted by us and accepted by you. These Terms, together with the quotation between you and us with respect to your purchase of Work (“Custom Agreement”) and Performance of Work is conditioned on your acceptance of the Terms and conditions, whether by execution of a contract, or a PO.Terms Conflict. In the event of a conflict of terms contained in the Custom Agreement documents, the written statement of work takes precedence over these Terms, and any written contract signed by both parties takes precedence over either. These Terms supersede all prior communications between us, whether written or oral, relating to the Work, except for a written contract signed by us and you. Your submission of a purchase order or other similar document to indicate payment for the Work shall indicate your acceptance of these Terms.
2. Performance of Work We will perform the Work as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by us or our affiliates (collectively “Service Provider Technology”) to provide you with data and/or materials produced by us as a direct result of the Work, as specified in the Deliverables. Deliverables may include data or materials that result from the use of materials you supplied (“Client Materials”). We will make a good faith effort to start and complete all Work on time, and will notify you if substantial delays are likely. We will comply with all laws and regulations generally applicable to Work, and with any specific regulatory framework agreed in the statement of work. Unless otherwise expressly agreed in the contract, the Deliverables are not produced in accordance with FDA GMP/GLP We may delegate performance of the Work, or portion thereof, to an affiliate or authorized subcontractor, provided that all Work will be performed in accordance with the Custom Agreement.
3. Client Materials and Data. You will provide us with Client Materials specified in the Contract. The Client Materials, and all information about Client Materials, whether you provide it or we generate it in the performance of Work shall be subject to the confidentiality and non-use requirements. Upon completion of the Work, we will maintain records of the Data for a period of no less than 1 year. We will use Client Materials and Data only in accordance with the contract.
4. Use Limitations. Except as expressly agreed otherwise in the contract, you agree to use Deliverables only for your lawful internal research purposes, not for use in humans, and in accordance with any Limited Use Label License (LULL) identified in the contract, and Deliverables shall not be transferred to or commercially used by or for any third party, regardless of whether such transfer or commercial use of Deliverables is for your research purposes. The research use limitation, however, shall not preclude your use of (i) Deliverables in your lawful research and development of commercial products or services, provided that such product or service does not require the practice Service Provider Technology, or (ii) any Data for the regulatory approval and commercialization of such products or services. Where more than one LULL is applicable, the most restrictive LULL shall apply, and these Terms take precedence over any less restrictive LULL, but any use limitations or permissions expressly stated in the contract take precedence over either.
5. Payments. You will pay us for the Work within 30 days after the date of the respective invoice(s), which we will send to you when we complete the Work (or portion thereof), according to the payment schedule and currency specified in the contract. If you default on any payment when due, we, at our option and without prejudice to our other lawful remedies, may delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the Custom Agreement.
6. Ownership, Intellectual Property. As between the parties, except as otherwise expressly agreed in the SOW, you will be the exclusive owner of (i) the Data, (ii) Client Materials, (iii) any derivatives or modifications of Client Materials that we generate as a direct result of the Work, and (iv) any inventions and/or discoveries that directly result from our performance of the Work and that directly relate to Client Materials, whether or not copyrightable or patentable (collectively, the “Client Inventions”). At your request and expense, we will do all things reasonably necessary to assist you in obtaining patents or copyrights on any Client Inventions, provided however that Client Inventions shall not include Service Provider Technology or any improvements or modifications thereof, whether developed before or during the performance of the Work. You shall not, by virtue of the Work performed hereunder, obtain any license or other rights in any Service Provider Technology to (a) use Deliverables other than as set forth in Section 4, (b) independently recreate the Deliverables or any materials that are proprietary to us, even if used to perform the Work; and/or (c) sell or otherwise use the Deliverables for commercial purposes whether or not commercialized for research use; unless expressly stated in the contract or agreed in a separate written contract between the parties. We will own our laboratory notebooks or other records maintained with respect to the Work; but to the extent such notebooks or records contain any Data or other confidential information of yours, such Data and confidential information will continue to be your property, and the parts of the notebooks and records that contain your confidential information will be subject to our obligations of nonuse and confidentiality as set forth in Section 8.
7. Non-Exclusivity. Unless expressly agreed in writing, all Work is provided on a nonexclusive basis, and we reserve all rights for ourselves and our affiliates to provide third parties with deliverables that are identical or similar to Deliverables, provided that in doing so, we will not use any Client Materials or information received from you to perform Work for any third party. Notwithstanding Anything else in the Terms, where we perform the Work without reliance on Client Materials or confidential information you provided us, we reserve all rights to commercialize such Work as a catalog product.
8. Confidentiality. We will treat all Data and Client Materials as proprietary and confidential to you, and will not disclose Data or Client Materials to any person except to our employees, consultants, and subcontractors as necessary for purposes of providing the Work, and then only subject to a written confidentiality agreement that includes the requirements specified herein. If we disclose any information or materials comprising Service Provider Technology to you, you will treat such information and materials as proprietary and confidential to us. Each party shall protect the proprietary and confidential information or materials of the other party by using the same degree of care as such party uses to protect its own materials and information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, however, each recipient party shall have no obligation to the other party for any information or material that is (a) already known to the recipient party; (b) publicly known other than by a wrongful act of the recipient party; (c) received from a third party lawfully entitled to disclose it; (d) disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by or for the recipient party.