New York Genome Center Terms and Conditions
The following Terms and Conditions only apply to Quotations referencing the NYGC’s online Terms and Conditions.
The Terms and Conditions contained herein (“Terms and Conditions”) shall govern all orders for purchases of services set forth in the accompanying Quotation (“Services”) to be provided by New York Genome Center (“NYGC”) to the customer identified on the Quotation (“Customer”). Customer’s acceptance of any Quotation is subject to and expressly limited by these Terms and Conditions, and acceptance of Services shall be deemed agreement to these Terms and Conditions. These Terms and Conditions cannot be waived, modified or supplemented without the prior, express written consent of duly authorized representative of NYGC.
• Services. NYGC will use reasonable commercial efforts to perform the Services described in the Quotation pursuant to the specifications and timeline set forth therein and subject to these Terms and Conditions. Customer understands and agrees that data generated from the Services is to be used FOR RESEARCH PURPOSES ONLY and that it will not use such data to make clinical diagnoses or treatment decisions.
• Customer Representations and Warranties. Customer represents and warrants that (i) biological material or other materials sent to NYGC (“Samples”) are or will be properly collected, de-identified, labeled, handled, stored, packaged and shipped and (ii) it has secured all necessary and legally required informed consents, authorizations, approvals and permissions required by law and by Customer’s institution or company for NYGC to perform the Services for the purpose of genetic research including generating analysis of results (the “Results”) and (iii) it will not violate any laws or regulations by providing Samples to NYGC to obtain the Services, including the use of the Results and (iv) it will not release the key to the coded samples to NYGC under any circumstances. Customer is responsible for notifying NYGC of any special handling request. All Samples must be accompanied by a Sample Submission Form (“SSF”), which, together with the Quotation, confirms the services to be provided and provides a detailed inventory of the Samples submitted for processing.
• Payments. Customer agrees to pay NYGC for the Services in accordance with the Quotation. Generally, NYGC will invoice Customer upon completion of the Services. For services covering a period of more than one month, NYGC may submit invoices on a monthly basis for the portion of Services performed in that time period. NYGC will also invoice Customer for arrays or other specialty or custom consumables purchased on behalf of Customer. Upon receipt of such invoices, Customer is responsible for any tax, duty, custom or other fee of any nature, other than taxes on NYGC’s income, imposed on the Services by any federal, state, local or foreign government authority in addition to the price quoted or invoiced. Unless otherwise authorized in writing, NYGC invoices are due and payable as set forth in the Quotation. Payment shall be deemed late if not received within such time and shall be subject to interest equal to 1% percent per month (12% per year) or the maximum legal rate, whichever is less, or the amount due. All payments shall be made in U.S. dollars. In the event that any payment is more than thirty (30) days late, NYGC has the right to suspend performance of the Services, until all overdue payments are made current.
• Quality Terms. NYGC will test the quality and quantity of all submitted samples to ensure they are adequate to be run through the requested sample preparation pipeline. Customer will be notified if a Sample does not pass NYGC’s quality metrics and Customer will be responsible for advising NYGC on whether or not processing should continue at Customer’s risk. Customer will be charged for samples processed at Customer’s risk. Any Samples deemed by NYGC to be insufficient, invalid, or degraded to the point of being unusable may be returned at Customer request. NYGC may elect to charge a fee at its standard rates for expenses related to Sample preparation, quality testing and shipping fees for each returned Sample. Customer will be responsible for charges incurred in the processing of replacement Samples. In the event a Sample is caused to be unusable due to a failure of a third party consumable, NYGC will make a reasonable effort to obtain a replacement consumable to re-perform the analysis, but in the event that a replacement consumable cannot be obtained or the analysis cannot be re-performed, NYGC accepts no responsibility for the loss of Samples.
• Termination. The Services may be terminated by Customer at any time, however Customer remains responsible for any costs incurred by NYGC in connection with the Services including any Services NYGC has in process under the Quotation at the time of notification of Termination. The Services may be terminated by NYGC upon thirty (30) days written notice to Customer if Customer fails to pay the fees due to NYGC or breaches any of the Terms and Conditions or other Customer obligations outlined in the Quotation. Termination shall become effective at the end of the thirty (30) day period unless Customer has cured any such breach or default prior to the expiration of such thirty (30) day period.
• Notices. All notices to NYGC and associated with the Services shall be made by overnight commercial courier, addressed as follows:
New York Genome Center
101 Avenue of the Americas, 5th Floor
New York, New York 10013
• Entire Agreement. The Terms and Conditions, the Quotation or other pertinent documentation attached thereto, represent the entire agreement of the parties. No change or modification of these Terms and Conditions shall be effective unless it is in writing and signed by a duly authorized representative of NYGC and Customer. NYGC will accept Customer purchase orders for administrative convenience, but conflicting terms of purchase orders that purport to replace, modify or supplement the terms of these Terms and Conditions shall have no effect.
• Intellectual Property; Confidentiality. Customer represents and warrants that any information, technology, supplies, specifications, designs and materials it supplies to NYGC will not infringe the intellectual property rights of any third parties. Any proprietary know-how or other information disclosed by Customer to NYGC will remain the sole property of Customer and will not be used or disclosed by NYGC to any third party without Customer’s prior written consent, except where such use or disclosure is necessary to properly carry out the provision of the Services in question. Customer will not use or disclose to any third party any confidential or proprietary information of NYGC, including prices and price schedules, without NYGC’s prior written consent, except as expressly authorized in these Terms and Conditions.
Customer retains all rights and title in and to Customer Samples and Results. Notwithstanding the foregoing, if Customer (i) confirms that the necessary consents and/or approvals have been obtained and (ii) consents in writing to such use, NYGC may use the Results for software and process improvements.
• Compliance with Laws. In carrying out the purpose of this Agreement, each of NYGC and Customer agrees that its activities will be conducted in compliance with all relevant laws and regulations in force at the United States federal, state and local levels.
• Limited Warranty. Other than as expressly set forth in these Terms and Conditions, NYGC makes no representations, warranties or guarantees regarding the Services supplied by NYGC to Customer, or the use of, or the results of the use of such Services, or the performance of the Services. NYGC DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS, AT NYGC’S SOLE OPTION, A CREDIT FOR, OR RE-PERFORMANCE OF, THE SERVICES IN QUESTION. IN NO EVENT WILL NYGC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF SAMPLES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR PROPERTY DAMAGE SUSTAINED BY CUSTOMER FROM THE USE OF, OR INABILITY TO USE, ANY SAMPLES OR RESULTS, EVEN IF NYGC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS TO ANY NYGC LIABILITY NOT SUBJECT TO THE FOREGOING, NYGC’S MAXIMUM LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO NYGC FOR THE SERVICES IN QUESTION.
• Force Majeure. NYGC will not be liable for lost or destroyed samples, delay or non-performance of any of its obligations hereunder or its performance of the Services to the extent that such performance is prevented, prohibited or delayed, or such loss or destruction of samples is caused, by any circumstance for reasons beyond its control including without limitation, labor disputes, fire, flood, natural disaster, war blockade, military operations, riot, civil commotion, plant breakdown, power outage, computer or other equipment failure or non-delivery or delays in delivery by any other suppliers of goods or services utilized in the performance of services under this Agreement, provided that NYGC completes the Services within a reasonable time after such circumstances are resolved.
• Miscellaneous. NYGC is an independent entity and nothing in the Terms and Conditions or the Quotation shall be construed to create a partnership, joint venture or employment relationship between the parties.
If any provision of the Terms and Conditions shall be determined to be invalid or unenforceable, such determination shall not affect the validity of the other provisions of the Terms and Conditions.
Waiver by either party or the failure by either party to claim a breach of any provision of the Terms and Conditions shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach of any provision of the Terms and Conditions.
This agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its choice of law provisions.