TERMS & CONDITIONS
Scope: Ingredient Integrity, LLC dba Ingredient Identity (hereafter “II”) agrees to provide the services for assigned work requests or tasks and subtasks (hereafter the “Services”) described in the Quotation in accordance with this Agreement and with any protocols pertaining thereto that have been approved by the Sponsor and II. This quote expires in 30 days from the issuance date. Estimates, Estimated Budgets and/or Estimated Totals provided to Sponsor in advance of or under signed contract for each work request or approved task, whether verbal or in writing are for information purposes only relative to the Scope and do not constitute restrictions on billing for Services, but do require prior Sponsor approval. II will invoice only for actual billable hours recorded against Services rendered under the defined Scope as approved by Sponsor.
Standards: II’s Services will meet standards generally prevailing in the industry and regulations that are applicable to the project/tasks as specified.
Regulatory Inspections: II will notify Sponsor of any regulatory inspections or investigations directly relating to the project/tasks. Sponsor accepts reasonable and documented costs charged by a regulatory authority for inspections directly related to or in support of the project/tasks and any associated filing fees, only if required.
Scope Changes: Sponsor may request reasonable project scope changes, including deliverables and the deliverables schedule (“Changes”). Sponsor must submit requested Changes in writing, and the requested Changes require written approval by II and Sponsor to be considered binding by both the parties. Sponsor 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 Sponsor weekly per the pricing structure set forth in this Agreement or unless defined otherwise in writing. Invoicing terms are subject to change at any time with notice to Sponsor. Some Quotations may require a deposit, retainer or pre-payment, of which the deposit may be considered refundable as notified by II to Sponsor in advance of initiating Services. Any refundable amount of unused billable time will be returned to Sponsor within thirty (30) calendar days. All regular invoices are due upon weekly billing schedules or upon completion, whichever comes first, or upon study cancellation unless otherwise stated on the invoice corresponding to the appropriate quotation. Estimates or Estimated Billable Hours for Projects and/or any Tasks or Subtasks thereof are provided to Sponsor for general budgeting and information purposes only. Under no circumstance will the total amount of any actual billable hours rendered by II for the Project be limited to the Estimated Billable hours however communicated; some projects may require prior client approval before exceeding a specified billable limit due to unforeseen requirements by either party. Invoices will be paid using any deposit(s) made to initiate the Project until such has been exhausted, after which all work either ”in progress” or “scheduled” will be paused until the incremental deposit has been refilled. Sponsor may request an invoice for each incremental deposit at any time. Payments for all other services, as determined by II that are not received after ten (10) calendar days past the invoice due date, if applicable, will be subject to a late payment fee of 2.5% per month (or part of a month) for payments not received. Delays or failure to bill for interest due shall not be a waiver of II’s right to charge interest upon collection. Payments made to II by Credit Card for any invoices are subject to an additional credit card processing fee of 3.00% of the total amount upon being invoiced. All international based Sponsors are required to pre-pay in full; any remainder of unused funds from a deposit or retainer will be held as a credit until refunded less any additional billable time required to close out the respective project, including removal or return of data, only as necessary. Invoicing and any corresponding due dates identified on invoices are independent of any reports or other deliverables being issued, whether weekly, monthly, quarterly or upon completion; activity reports provided by II for Sponsor are not considered deliverables under the Scope of this Agreement and are for information purposes only.
Taxes: Sponsor 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: Only as applicable to the Scope, II may arrange from time to time the shipment of products, raw materials, samples and components on behalf of Sponsor at a specified service charge up to twenty percent (20%) of the service fee of associated labor, whichever greater. All shipments will be made via commercially available common carriers by II and will be delivered F.O.B. II’s facilities. Sponsor assumes all responsibility for making claims against the common carrier in the event of loss or damage to Sponsor’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 SPONSOR TO II UNDER THIS AGREEMENT IN THE GIVEN MONTH SUCH LIABILITY WAS PURPORTED TO OCCURR. NOTWITHSTANDING THE FOREGOING, II’S LIABILITY FOR LOSSES TO ANY INGREDIENTS, FINISHED PRODUCTS OR OTHER ANY MATERIALS PROVIDED BY SPONSOR FOR SERVICES, WHETHER OR NOT INCORPORATED INTO FINISHED PRODUCT OR DEMO, SHALL NOT EXCEED $1,000 OR THE COST OF THE SERVICES RENDERED, WHICHEVER LESS. 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.
Non-solicitation: Superseding any respective Non-solicitation clause in any other Agreement between II and Sponsor, for the period commencing with the date of execution of this proposal and ending twelve (12) months after the last documented communication(s) between the parties concerning any potential or actual business being executed, neither party will solicit or attempt to solicit, or hire or seek to hire any employee, consultant or advisor of the other party or any person who was such an employee, consultant or advisor during the period from its execution, without prior written consent of the other party unless that employee, consultant or advisor of the other respective party was formally terminated, dismissed or contractually separated by II, with documented evidence of such release prior to any attempt(s) by the other Party. Both parties hereby agree that, notwithstanding the foregoing, if one party does hire or seek to hire, or in any other way contract with any of the other party’s employees, consultants or advisors with whom it comes into contact during this period, without consent for which consent was or is required, the violating party shall pay the other party twenty-percent (20%) of either the individuals’ contracted amount during the first twelve (12) months of their engagement or the individuals’ total employment compensation value including any bonuses and commissions for the first twelve (12) months, in full, within thirty (30) days of that violation as a recruitment fee to the other party and hereby also agrees to submit accurate financial documentation as proof of such transactions or engagements resulting from the violation, or if requested, allow for a qualified independent financial auditor to audit the other party during the same twelve (12) month period in order to determine the actual recruitment fee amount due in addition to any payment for said auditor’s fees.
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 Sponsor to II or developed by II in the performance of the Project shall be the sole and exclusive property of Sponsor; provided, however, that II shall retain all intellectual property rights to non-service or project specific operating procedures, and/or techniques and procedures developed by II while performing the Project, but not related to Project contracted with Sponsor.
Sponsor Obligations: Unless otherwise agreed to by the parties in writing, Sponsor 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 Sponsor-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 Sponsor set forth in this Agreement.
Indemnification: Sponsor 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 Sponsor-provided materials and/or Sponsor’s products, (ii) use or exposure to any Sponsor-provided materials and/or Sponsor’s products, (iii) negligence or willful misconduct of Sponsor, or (iv) Sponsor’s breach of this Agreement. II will indemnify Sponsor 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, Sponsor may terminate this Agreement without liability to Sponsor.
Retention of Sponsor 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 Sponsor to determine either the return of the records to the Sponsor at Sponsor’s expense or the secure destruction of the records at II’s expense, with the exception of records relating to the documented billing, evidence of such records for Services rendered, including but not limited to time cards, project transaction records, financial records, report coding and issued reports.
Retention of Sponsor Materials: Unless the parties otherwise agree in writing, II will retain any Sponsor-provided samples, supplies, and/or documents (collectively “Sponsor Materials) for one (1) year from the date of receipt. After the one (1) year period, II will make reasonable efforts to contact the Sponsor to determine either the return of the Sponsor Materials to the Sponsor at Sponsor’s expense or the destruction of the Sponsor Materials at Sponsor’s expense. Sponsor may request return of Sponsor Materials at any time.
Independent Contractor: It is expressly agreed that II and Sponsor 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: Only as applicable to the Scope, Sponsor grants II full authority to use any Sponsor Materials. Sponsor 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 this Project.
Dispute Resolution: In the event of any dispute arising under this Agreement, senior executives of II and Sponsor 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 JAMS or AAA, 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 limited to: Protocols, Test Methods, Reports, Data whether formatted or unformatted, Specifications and other digital materials such as emails, attached documents therein, electronic files, etc. II shall deliver Project Documents as the deliverables of this Agreement per the agreed upon Scope. II will issue revised Project Documents at no charge if the revision is due to any II errors or omissions. If Sponsor requests a revised Project Document for any reason other than II errors or omissions, II reserves the right to invoice the Sponsor at the standard rate per billable hour to make said changes. 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.
Reimbursable Expenses & Sub-contracting Costs: Reimbursable Expenses are for all expenses incurred by II in order to render Services to Sponsor and is not inclusive of any billable time or billable travel rates; such items may include, but are not limited to travel fees or airfare, registrations, mileage, rentals, tolls fees, taxi fees, dining/meals, hotel, wireless access, etc. Sub-contracting Costs are for any materials or services procured and managed on the behalf of Sponsor including, but not limited to fees paid or contracted work with any 3rd parties as approved by Sponsor as part of or in relation to Services, which are subject to a 20% handling and management fee of that total inclusive of any taxes.
Termination: Either party may terminate this Agreement at any time by providing written notice and identifying the termination date. Upon receipt of any such notice of termination from the Sponsor, II will promptly halt or scale down the affected portion of the Project, and avoid (or minimize, where non-cancelable) any further Project-related expenses, which are to be billed to the Sponsor as defined in Section 23 of this Agreement, all of which will considered DUE IMMEDIATELY, regardless of prior billing terms. FOR OUTSOURCED QA ONLY: In the event of termination by the Sponsor for a Part-Time Equivalent (PTE) proposal, the defined draw down period for each forty (40) hour increment agreed to under such contract will be limited to one (1) full calendar month until the defined termination date or last forty (40) hour drawn down increment of said agreement is reached. There is no proration of any month or partial refunds under any circumstances. The deposit paid will be applied to the final month of said agreement, and is not refundable under any circumstances. In the event of contract termination by Sponsor or II, all applicable third-party cancellation fees, fees for all services already rendered, all pass-through costs, reimbursable expenses, and other relevant Termination Fees if applicable will be DUE IMMEDIATELY to II and Sponsor hereby agrees for II to collect such fees as documented by II through the processing of any previous forms of payment including, but not limited to credit card processing, ACH Direct Debit or withdrawal from any applicable escrow account.