STANDARD TERMS & CONDITIONS TO PSYNTHESYS, INC. PROJECT ORDER FORM
Effective Date: April 14, 2021
These Standard Terms and Conditions for Psysnthesis, Inc. Project Order Forms (“Terms”) are effective as of April 14, 2021. In the event of any conflict between these terms and the applicable Project Order Form to which they relate (the “Order”), these Terms will control except as otherwise expressly provided in the Order. Capitalized terms used but not defined in these Terms will have the meaning given to them in the Order. With respect to the Order in which these Terms are incorporated, such Order together with these Terms may sometimes be referred to below as the “Agreement”.
All Services are to be performed by Psynthsys personnel unless Client provides its prior written consent to Psynthesys engaging a subcontractor. Psynthesys will at all times be responsible for the compliance of its permitted subcontractors with the terms and conditions of the Agreement.
Psynthesys agrees to perform the Services set forth in the Order in accordance with the Order and in a competent and professional manner utilizing personnel who are qualified and professionally capable of performing the applicable Services. All Services will be performed in accordance with all applicable federal, state and local statutes, rules and regulations.
3. Work Product; Ownership
Except as otherwise provided in these Terms or the Order, all Work Product (defined below) shall be a work for hire and upon full payment of the applicable Order such Work Product will be the property of Client. Psynthesys shall not incorporate into any Work Product any of its own intellectual property or that of any third party without the prior written consent of Client. Should Psynthesys incorporate any of its own pre-existing intellectual property into Work Product, Client shall have a fully paid, perpetual, non-exclusive and fully assignable license to use such intellectual property. If Client authorizes third-party intellectual property to be incorporated into Work Product, Psynthesys shall procure a license for Client to use such intellectual property on terms to be mutually agreed to be Psynthesys and Client. Finally, any original art work created by Psynthesys in connection with a Project shall remain the sole property of Psynthesys and Client shall have a fully paid, perpetual, non-exclusive and fully assignable license to use such artwork.
As used in these Terms, “Work Product” means any and all data and products (interim and/or final) of the Services performed by Psynthesys, whether tangible or intangible that is made by Psynthesys, either solely or jointly with others, in the course and as a result of performing the Services and which are specifically customized to meet the particular business needs of Client or which incorporate, rely upon or require the use of any of Client’s Confidential Information.
4. Delivery of Work Product
Work Product will be delivered to Client by Psynthesys in a timely manner throughout the performance of the Project, and in no event later than 10 working days after the date of completion or termination of the Project or, if sooner, no later than 10 working days after the date on which Client otherwise requests delivery of the Work Product.
Client agrees to provide at no cost to Psynthesys the applicable materials necessary for performance of any Project, which may include, without limitation, Client Product (collectively, “Materials”). All such Materials will remain the sole property of Client, will be used only in furtherance of the Services in accordance with the Order for which they have been delivered.
Client will pay all undisputed invoiced amounts within 30 days of receipt by Client of the applicable invoice. Psynthesys will not exceed the budget set forth in the Order without the prior written consent of Client. Client will engage promptly and in good faith with Psynthesys to resolve any payment issues.
(a) During the term of the Agreement and for a period of five (5) years thereafter, Psynthesys will maintain all Confidential Information (as defined below) as confidential and will not disclose any Confidential Information or use any Confidential Information for any purpose, except (i) as expressly authorized by the Order or or these Terms or (ii) to those of its employees and Client-approved subcontractors who require access to such information in order to perform their duties in connection with the conduct of the Services so long as such persons are under obligations regarding the confidentiality, non-disclosure and non-use of the Confidential Information and the ownership of Work Product that are consistent with and no less protective to Client than those set forth in these Terms. Psynthesys will use at least the same standard of care as it uses to protect its own confidential information (which shall in no event be less than a reasonable standard of care) to ensure that its employees, and Client-approved subcontractors do not disclose or make any unauthorized use of the Confidential Information. Psynthesys will promptly notify Client upon discovery of any unauthorized use or disclosure of the Confidential Information.
(b) For purpose of these Terms, “Confidential Information” means all information provided by, or on behalf of, Client to Psynthesys in connection with any Project or obtained by Psynthesys through observation or examination of such information as well as all data, inventions and information developed in or as a result of the activities undertaken by Psynthesys in connection with each such Project (including, without limitation, the Work Product and the Materials), whether in oral, written, graphic or electronic form. Notwithstanding the foregoing, Psynthesys's non-disclosure and non-use obligations will not apply to any information which Psynthesys can demonstrate by competent evidence: (i) is now, or hereafter becomes, through no act or failure to act on the part of Psynthesys or any of its employees, agents, consultants or subcontractors, generally known or available; (ii) was lawfully in Psynthesys's possession, without restriction as to confidentiality or use, at the time of disclosure by Client of such information; or (iii) is hereafter furnished to Psynthesys by a third party, as a matter of right and without restriction on disclosure.
(c) Authorized Disclosure. Notwithstanding the above provisions of this Section 7, Psynthesys may disclose Confidential Information, without violating its obligations to Client to the extent the disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that Psynthesys gives reasonable prior written notice to Client of such required disclosure (if legally permitted) and, at Client’s request and expense, cooperates with Client’s efforts to obtain a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation requires, or for which the order was issued.
(d) Third Party Confidential Information. Psynthesys shall not disclose to Client any confidential or proprietary information that belongs to any third party during its performance under the Agreement.
8. Representations and Warranties
(a) Representations and Warranties. Each party represents and warrants that (i) it has full power and authority to enter into the Agreement, (ii) the Agreement has been duly authorized, (iii) the Agreement is binding upon it and (iv) the performance of its obligations under the Order will not violate any agreement to which it is a party. Psynthesys further represents and warrants that it will not infringe any third party intellectual property in its performance of the Services.
(b) No Debarment. Psynthesys hereby certifies that it has not been debarred under the provisions of the Generic Drug Enforcement Act of 1992, 21 U.S.C. §306. In the event that Psynthesys: (i) becomes debarred; or (ii) receives notice of action or threat of action with respect to its debarment, during the term of the Agreement, Psynthesys agrees to notify Client immediately. In the event that Psynthesys becomes debarred as set forth in clause (i) above, the Agreement will automatically terminate without any further action or notice by either party. In the event that Psynthesys receives notice of action or threat of action as set forth in clause (ii) above, Client will have the right to terminate the Agreement immediately.
(c) No Services of Debarred Persons. Psynthesys hereby certifies that it has not and will not use in any capacity the services of any individual, corporation, partnership, institution or association which has been debarred under 21 U.S.C. §30. In the event Psynthesys becomes aware of the debarment or threatened debarment of any individual, corporation, partnership, institution or association providing services to Psynthesys which directly or indirectly relate to Psynthesys’s activities under the Agreement, Psynthesys will notify Client immediately. Client will have the right to terminate the Agreement immediately upon receipt of such notice.
(d) Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER PARTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(e) Limitation of Liability. EXCEPT FOR (I) CLAIMS ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) BREACH OF SECTIONS 3 OR SECTION 7, OR (III) EITHER PARTY'S INDEMNITY OBLIGATIONS UNDER SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SAVINGS, OR ANY OTHER INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
9. TERM, TERMINATION
(a) Term. The term of the Agreement shall commence on the Effective Date and shall continue until terminated as provided below.
(b) Termination of Agreement At Will. Client may terminate the Agreement at any time upon 30 days’ prior written notice to Psynthesys.
(c) Termination of Agreement for Material Breach. A party may terminate this the Agreement for material breach by the other party upon 30 days’ written notice specifying the nature of the breach, if such breach has not been cured within such 30 day period.
(d) Effect of Early Termination or Expiration. In the event of termination prior to completion of the Services specified in the Order, Psynthesys shall be paid for all work completed through the date Psynthesys receives, or provides Client with, notice of termination in accordance with the Agreement, including reasonable and documented out-of-pocket expenses and any non-cancellable commitments incurred by Psynthesys in accordance with the Agreement and such Order; provided, however, that Psynthesys has used commercially reasonable efforts to cancel or otherwise limit and mitigate such out-of-pocket expenses and commitments as of the date on which it receives, or provides Client with, notice of termination. Psynthesys shall refund to Client any prepaid amounts not earned by Psynthesys prior to the date of such termination. In addition, upon the termination or expiration of the Agreement and/or any Order, Psynthesys will promptly deliver to Client all Materials and/or Work Product produced as the result of Services performed by Psynthesys up until the the termination date.
(e) Survival Upon Termination. Expiration or termination of the Agreement will not relieve the parties of any obligation accruing prior to such expiration or termination. All provisions that one would reasonably expect to survive expiration or termination of theAgreement will survive any expiration or termination of the Agreement.
10. Indemnification; Insurance
(a) Client Indemnification. Client and Psynthesys (as an “Indemnifying Party”) hereby agrees to save, defend, indemnify and hold harmless the other party (the “Indemnified Party”) and the Indemnified Party’s officers, directors, employees, consultants and agents (collectively with the Indemnified Party the “Indemnitees”) from and against any and all losses, damages, liabilities, expenses and costs, including reasonable legal expense and attorneys’ fees (“Losses”), to which any such Indemnitee may become subject as a result of any claim, demand, action or other proceeding by any third party to the extent such Losses arise out of: (i) the material breach by Indemnitor of any representation, warranty, covenant or agreement made by it under the Agreement; or (ii) the gross negligence or willful misconduct of Indemnitor; except, in each case, to the extent such Losses result from the material breach by the Indemnifying Party of any representation, warranty, covenant or agreement made by it under the Agreement or the negligence or willful misconduct of any Indemnitee.
(b) General Conditions of Indemnification. An Indemnifying Party’s agreement to indemnify, defend and hold an Indemnified Party and its related Indemnitees harmless is conditioned upon the Indemnified Party: (i) providing written notice to the Indemnifying Party of any claim, demand or action arising out of the indemnified activities within 30 days after the Indemnified Party has knowledge of such claim, demand or action; (ii) permitting the Indemnifying Party to assume full responsibility and authority to investigate, prepare for and defend against any such claim or demand; (iii) assisting the Indemnifying Party, at the Indemnifying Party’s reasonable expense, in the investigation of, preparation for and defense of any such claim or demand; and (iv) not settling such claim or demand without the Indemnifying Party’s written consent unless such settlement is without imposing any admission of wrong doing or other obligation on any Indemnitee.
(c) Insurance. Psynthesys will arrange and maintain, with financially sound and reputable insurers, general commercial and professional services/errors and omissions liability insurance in adequate amounts to cover the Services and to cover Psynthesys’s employees, agents, consultants, permitted subcontractors or other representatives performing the Services and consistent with industry practice. Said insurance shall be maintained for the duration of the term of the Agreement and for a period of one (1) year following termination of the Agreement, or longer as may be required by applicable law, rules or regulations. Psynthesys shall, on written request, provide Client with evidence of such insurance coverage. Psynthesys also agrees that it will maintain workers’ compensation insurance in the amount required by the laws of the state in which Psynthesys’s employees performing the Services are located.
11. General Provisions
(a) No Implied Licenses. No right or license is granted under the Agreement by either party to the other, either expressly or by implication, except those specifically set forth herein.
(b) Independent Contractor Relationship. Psynthesys’s relationship with Client will be that of an independent contractor and nothing in the Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Psynthesys is not an agent of Client and is not authorized to make any representation, contract, or commitment on behalf of Client. Psynthesys will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Psynthesys’s performance of services and receipt of fees under the Agreement.
(c) Use of Names. Neither party shall use the other party’s name or the names of the other party's employees in connection with any advertising or sales promotional material or in any publication without the other party’s written consent, except as required by federal, state or local laws, rules and regulations. Neither party shall disclose the specific content or terms of the Agreement without the prior written consent of the other party, except in accordance with Section 7(c). Notwithstanding the above, Client may represent Psynthesys's role in reports to or filings with government or regulatory agencies.
(d) Choice of Law. This Agreement shall be governed by the laws of the State of California, excluding its conflicts of laws principles.
(e) Injunctive Relief. Psynthesys hereby agrees that breach of the Agreement will cause Client irreparable damage for which recovery of damages would be inadequate, and that Client shall therefore be entitled to obtain timely injunctive relief under the Agreement without the necessity of proving actual damages and without posting bond, as well as such further relief as may be granted by a court of competent jurisdiction.
(f) Entire Agreement; Amendment. The Order, together with these Terms, constitutes the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements relating to its subject matter. The Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both parties.
(g) Updated Terms. Psynthesys may in its sole discretion amend or replace these Terms at any time. Such amended or replacement terms will not modify the Agreement, but instead shall apply to any Order entered into after the date that such amended or new Terms are first posted.
(h) No Strict Construction. These Terms and the Order will be interpreted as though equally drafted by each party without any interpretation for or agains either party.
(i) Severability. If any provision of the Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by the Agreement as a whole.
(j) Assignment; Delegation. The Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. Neither party may assign any of its rights or obligations under the Agreement to any third party without the express, written consent of the other party; provided, however, that Client may assign or transfer its interest in the Agreement to an affiliate, in connection with a merger or sale of substantially all of its business or that portion of its business pertaining to the subject matter of the Agreement, whether by merger, sale of stock, sale of assets or otherwise, or under a license or collaboration in connection with the Materials. Psynthesys may not subcontract or otherwise delegate its obligations under the Agreement without Client’s prior written consent.
(k) Headings. Section headings are for convenience of reference only and shall not be considered in the interpretation of the Agreement.
(l) Force Majeure. In the event of a delay caused by inclement weather, fire, flood, strike or other labor dispute, act of God, act of governmental officials or agencies, or any other cause beyond the control of the parties, the party or parties so affected shall be excused from performance hereunder for the period of time attributable to such delay, which may extend beyond the time lost due to one or more of the causes mentioned above. In the event of any such delay, the parties may, in their sole discretion, amend the Agreement or any Order, as appropriate, by mutual written agreement.
(m) Further Assurances. Each party shall act in good faith in its performance of the Agreement and shall: (i) not unreasonably delay or withhold the giving of any consent, decision or approval that is either requested or reasonably required by the other party in order to perform its responsibilities and/or obligations under the Agreement; and (ii) do such other acts and things the other party may reasonably request for the purpose of carrying out the intent of the Agreement.
(n) Notices. All notices and other communications required to be provided hereunder will be in writing and will be deemed to be sufficiently given if sent by either certified mail return receipt requested, pre-paid nationally recognized delivery service, by hand delivery or email, to the address of the receipient as set forth in the Order. Either party may by like notice specify or change an address to which notices and communications will thereafter be sent. All notices shall be effective: (i) when delivered personally; (ii) upon promised delivery date in the case of a nationally recognized overnight delivery service; (iii) upon receipt if sent by certified or registered mail or (iv) upon confirmation of receipt if sent by email.
(o) Counterparts. The Order may be executed by facsimile or “.pdf” and in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
(p) Non-Waiver. No failure or delay of one of the parties to insist upon strict performance of any of its rights or powers under the Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law