Sequencer Services Terms and Conditions
These Sequencer Services Terms and Conditions govern any Order (defined below) for
sequencing services provided by FYR Diagnostics, Inc. (“FYR”) to you, either as an individual
or an entity (“Customer”) (FYR and Customer are individually referred to herein as a “Party”
and collectively as the “Parties”). By signing the Order, you accept these Sequencer Services
Terms and Conditions on behalf of your entity or employer and, if on behalf of your employer,
you represent and warrant that you have the requisite authority to bind your employer.
a. “Agreement” means, collectively, these Terms and Conditions, any Order and any
applicable amendments thereto
b. “Customer Samples” means biological specimens or other materials provided to
FYR, or caused to be provided to FYR, by Customer for the Services.
c. “FYR IP” means any methods, materials, data, processes, equipment and all
intellectual property rights thereto that are owned or controlled by FYR or licensed to FYR.
d. “Order” means a statement of work, purchase order or service order that describes
the Services to be provided by FYR and is executed by both Parties.
e. “Results” means any data, information, reports or other analysis generated by
FYR through the Services and delivered to Customer, but will not, in any event, include FYR IP.
f. “Services” means all sequencing services and any additional services, including
but not limited to research and analysis, that are described in the applicable Order.
g. “Terms and Conditions” means these Sequencer Services Terms and Conditions,
which may be updated or amended from time to time by FYR as set forth herein
2.Services; Customer Samples; Results.
- a. Services. FYR agrees to perform the Services for Customer as described in the
applicable Order. FYR will provide qualified and trained personnel to conduct the Services and
will perform all Services in accordance with all applicable laws and regulations, as well as
FYR’s laboratory testing policies and procedures. FYR will use best efforts to adhere to the
schedule set forth in the Order, but Customer understands that delays may happen and will be
notified by FYR in the event of a significant delay. FYR may delegate performance of the
Services, or a portion thereof, to a subcontractor without notice to Customer.
b. Customer Samples. Customer will transmit all Customer Samples and
accompanying information to FYR in accordance with state and federal privacy regulations and
laws and any specific instructions provided by FYR. Unless otherwise authorized in writing by
FYR prior to the transmitting of a Customer Sample, Customer will ensure that no personally
identifiable information or protected health information is provided to or accessible by FYR.
Customer will notify FYR of any relevant safety information and other hazardous characteristics
or properties of the Samples. Customer represents and warrants that it has the right to transfer
the Customer Samples to FYR and allow FYR to use the Customer Samples for the Services and
any other use agreed to by the Parties. Customer Samples and all information transmitted to
FYR with the Customer Samples will be considered the Confidential Information of Customer.
Unless otherwise specified in the Order or agreed to in writing, any Customer Samples not
destroyed or used in the Services will be destroyed after ninety (90) days.
- c. Results. FYR will deliver to Customer all Results set forth in the Order.
Customer acknowledges and agrees that the Results are neither guaranteed accurate nor
guaranteed to produce any particular result. In the event that any Result obtained by FYR is
“inconclusive” or “invalid” or a Customer Sample is otherwise delivered to FYR in a non-
testable condition, FYR will not be obligated to test and/or retest such Customer Sample without
further authorization from Customer and agreement to pay any necessary additional fees.
d. CLIA -certified Laboratory. To the extent necessary for the Services, FYR will
maintain a CLIA-certified diagnostic reference testing laboratory (CLIA License No.
27D2190551) and will follow all applicable federal and state laws and regulations appurtenant
for the term of this Agreement. To the extent necessary for the Services, FYR will notify
Customer in the event of a loss of CLIA certification status.
a. Payment Process. Customer will make all payments for the Services according to
the payment amounts and schedules stated in the applicable Order. Within thirty (30) days of
receiving such invoices, Customer will remit payment to FYR according to FYR’s written
instructions. Customer will also reimburse FYR for any reasonable expenses incurred in the
performance of the Services.
b. Taxes. Any federal, state, county, municipal or international sales, or use tax,
excise, charge or other tax assessment and any penalties and interest associated therewith,
assessed or charged on the sale of the Services will be paid by Customer.
c. Late Fees and Collection. Any amount not paid when due will accrue interest
until paid at the rate of 1.5% per month or the maximum amount allowed by law, whichever is
less. Customer will be responsible for any reasonable costs of collection (including collection
agency fees and attorneys’ fees) incurred by FYR. If invoices for Services are not timely paid,
subsequent Services may be canceled, delayed or subject to prepayment until overdue amounts
d. Third Party Reimbursement. Neither Party will be entitled to bill any third party
reimbursement programs for the Services. As used herein, the term “third-party reimbursement
programs” will include, but not necessarily be limited to, health maintenance organizations,
private health insurance companies, Medicare and Medicaid programs and other third-party
e. Fair Market Value. The Parties acknowledge that the compensation set forth in
this Agreement is consistent with fair market value in arms-length transactions and is not based
upon the volume or value of referrals or business between the Parties. The Parties will, in good
faith, periodically review the amount of the payments to ensure they remain at fair market value.
f. No Inducement to Refer. It is not the purpose of this Agreement to induce patient
referrals. The Parties acknowledge that there is no requirement or understanding under this
Agreement, express or implied, that either Party will refer patients to the other Party.
4.Term and Termination.
a. Term. The Agreement will commence on the date on which the last party signs
the Order and will remain in effect through the term of any Order or until terminated in
accordance with this Section 4.
b. Termination. Either Party may terminate this Agreement, without cause, breach
or penalty, upon thirty (30) days’ prior written notice to the other Party.
c. Effect of Termination. Upon the termination of this Agreement for any reason or
for no reason, neither Party will have further rights against, or obligations to, the other Party
except with respect to any rights or obligations accruing prior to the date and time of termination
and any obligations, promises or agreements that expressly extend beyond the termination or
which by their nature extend beyond the termination.
Each Party will maintain the confidentiality of any information
provided to it by the other Party that is identified as confidential or can reasonably be regarded as
confidential and will take precautions that are at least as protective of its own information to
prevent the unauthorized disclosure or use of such confidential information (“Confidential
Information”). Confidential Information does not include: 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. Upon written request, each Party will return all of the
other Party’s Confidential Information. Each Party acknowledges and agrees that a breach or
violation of this Section by it will have an irreparable, material and adverse effect upon the other
Party and that damages arising from any such breach or violation may be difficult to ascertain.
Without limiting any other remedy at law or in equity available to such Party, in the event of any
breach of any covenant contained in this Agreement by a Party, the other Party will have the
right to seek an immediate injunction enjoining the Party from breaching or violating of such
covenant or covenants, without the need to post any security or bond. The confidentiality
obligations set forth in this Section 5 will survive for a period of one (1) year after expiration or
termination of this Agreement.
As between the Parties, Customer will be the exclusive owner of Customer
Confidential Information, Customer Samples and Results, and FYR will be the exclusive owner
of FYR IP and any improvement, modifications or derivative works thereof, even if developed
during the performance of the Services. Customer hereby grants to FYR a worldwide, non-
exclusive, royalty-free, transferable, sublicensable, perpetual and irrevocable license to use the
Results for any purpose, including providing the Services, improving existing services and
products and developing new products and services; provided, however, that FYR’s use of the
Results in no way identifies Customer. Nothing in the Agreement will be construed as
conferring to Customer explicitly or by implication, estoppel or otherwise any license, right or
immunity under FYR’s intellectual property rights, including FYR IP.
7.Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL FYR OR ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS BE
LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE DAMAGES OR OTHER DAMAGES INCLUDING BUT
NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF DATA, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SHOULD THE FOREGOING LIMITATION BE DETERMINED TO BE UNENFORCEABLE
IN ANY RESPECT, THE UNENFORCEABLE PART WILL BE DEEMED REMOVED, AND
THE REMAINDER WILL REMAIN IN EFFECT. THE TOTAL LIABILITY OF FYR OR ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS TO
CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES IS LIMITED TO THE
AMOUNT PAID BY CUSTOMER DURING THE PRECEDING THREE (3) MONTHS TO
ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE
FURNISHED AS IS, WHERE IS, AND WITH ALL FAULTS AND WITHOUT WARRANTY
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR
a. Independent Contractor Status. In the performance of this Agreement, it is
mutually understood and agreed that FYR and its personnel are at all times acting and
performing as an independent contractor with, and not as employees, joint venturers, agents or
lessees of Customer and that FYR personnel will not have any claim under this Agreement
against Customer for vacation pay, sick leave, retirement benefits, social security, disability,
workers compensation, unemployment insurance or any other employee benefits.
b. No Waiver. The failure of any Party to insist at any time upon the strict
observance or performance of any of the provisions of this Agreement or to exercise any right or
remedy as provided herein will not impair any such right or remedy or be construed as a waiver
or relinquishment thereof. Every right and remedy given by this Agreement to the Parties may be
exercised from time to time and as often as may be deemed expedient by the Parties, as the case
may be. A waiver will only be effective if in writing and a waiver by either Party of a breach or
failure to perform hereunder will not constitute a waiver of any subsequent breach or failure.
c. No Third-Party Benefit. This Agreement is intended for the exclusive benefit of
the Parties hereto and their respective successors and permitted assigns and nothing contained in
this Agreement will be construed as creating any rights or benefits in or to any third party.
d. Assignment; Exclusivity. Customer may not assign any interest or obligation
under this Agreement without FYR’s prior written consent. Customer understands and
acknowledges that the Services are provided on a non-exclusive basis, and FYR reserves all
rights to continue to provide similar Services to third parties.
e. Severability. If any clause or provision is be judged invalid or unenforceable by a
court of competent jurisdiction or by operation of any applicable law, it will not affect the
validity of any other clause or provision, but will remain in full force and effect. Each provision
of this Agreement will be enforceable independently of any other claim or cause of action.
f. Press. Customer may not publish any press release, make any other public
announcement or otherwise communicate with any news media or public source concerning this
Agreement or the transactions contemplated hereby without the prior written consent of FYR.
Unless Customer states otherwise in writing at the time of signature on its first Order, FYR may
use Customer’s name and logo in any public materials, including promotional or marketing
g. Force Majeure. The failure or delay of either of the Parties to perform any
obligation under this Agreement (except the payment of money) by reason of earthquake, flood,
fire or other act of God, riots, wars, strikes, lockouts, labor disturbances, accidents in
transportation or other causes beyond its reasonable control will not be deemed to be a breach of
h. Governing Law; Venue. This Agreement will be construed and interpreted in
accordance with the laws of the State of Montana. Any action arising out of or to enforce this
Agreement must be brought in courts in the State of Montana. The Parties consent to the
jurisdiction of the courts in the State of Montana and to service of process by registered mail,
return receipt requested, or by any other manner provided by law.
i. Complete Agreement. This Agreement supersedes all prior agreements and
understandings between the Parties and constitutes the entire agreement of the Parties on this
matter. The Terms and Conditions may be amended, updated or modified from time to time by
FYR, in its sole and absolute discretion. Any amended, updated or modified Terms and
Conditions will apply to Orders that are instituted after the date the amended, updated or
modified Terms and Conditions are posted online. In the event of a conflict between these
Terms and Conditions and the Order, these Terms and Conditions will control. Any Customer
terms of purchase and/or terms or conditions in a purchase order or other ordering document will
have no effect and are hereby expressly rejected by FYR.
j. Notices. Any notices must be hand delivered or mailed, via certified mail, to:
FYR Diagnostics, Inc.
1121 East Broadway Street
MonTEC, Suite 155
Missoula, MT 59802