Term of Service Agreement
- The term of Service Agreement (“Service Agreement”) set forth below govern the performance of
services (“the Services”) by Genfine and/or its Affiliates (“Genfine”, Affiliates is as defined below) for
the referenced client in applicable Project Proposal (“Client”)
Genfine Biotech and its subsidiaries and Affiliates (“individually and collectively Genfine”) are
providing custom or contract research services in life sciences industry. This Service Agreement and
any Project Proposal(s) (and quotations therein), (as defined in Section 3) schedule(s),
attachment(s) and exhibit(s) agreed and executed by Genfine and Client shall govern the provision
of all custom/contract research services included in a Project Proposal (“Services”) by Genfine to
Client provided under the applicable Project Proposal. Genfine and Client are hereby referred to
each as a Party or collectively referred to as Parties. Affiliates shall mean any legal entity
controlling, controlled by, or under common control with the party, whether directly or indirectly
through one or more intermediaries.
- Service Agreement.
Unless acknowledged and signed by Genfine in writing, any additions or alterations by Client shall
not bind Genfine. Genfine failure to object to any amendments, alterations, additions or proposals
contained in any Project Proposal or other form or document from Client shall not be construed as a
waiver of the Service Agreement nor an acceptance of any such amendments, alterations, additions
- Scope of Work.
A detailed scope of work in the form or a project proposal quotation (“Project Proposal”) shall be
provided to Client and this Service Agreement shall be attached hereto as Schedule A. The Project
Proposal shall specify the details of the work, the design, information desired, data and materials to
be provided by Client, required completion time and all other matters relating to the completion of the
Project Proposal. The Project Proposal shall refer to this Service Agreement the Parties shall be
deemed to assent to the terms of the Service Agreement by executing the Project Proposal.
Changes of Scope/Services.
Changes to the Project Proposal or Services must be agreed upon and authorized by
representatives of Genfine and Client in writing. If such changes result in an increase in the cost and
labor of the Services or affect the projected date of completion of the Services (or portions thereof),
the compensation for the Services and/or completion date(s) shall be adjusted to a degree
commensurate with such changes agreed upon by Genfine and Client in writing. Cancellation of
Services in progress will result in a partial charge commensurate with the percentage of work
completed at the time of cancellation, in addition to any approved expenses beyond recall at the time
of termination, which incurred prior to termination, and any other actual costs and charges incurred
due to the early termination. Genfine has the right to terminate the Service Agreement without any
liability to Client if no agreement could be reached regarding the changes and adjustment of
compensation and costs by Genfine and Client in writing.
- Compensation and Payments.
Upon receipt of Deliverables (as defined in Section 8.1), Client will promptly review the Deliverables
to determine whether they conform substantially to the specifications agreed by Genfine and Client
in writing. Acceptance of Deliverables will occur on the earlier of the date: (a) on which Client
indicates in writing to Genfine that the Deliverables are accepted; (b) on which ten (10) business
days have passed following submission of the Deliverables for acceptance if within that period Client
fails to indicate whether they are accepted. The Client shall pay Genfine for the Services within thirty
(30) days from the date of receipt of the invoice(s), or, if applicable, according to the compensation
rate and payment schedule as set forth in Project Proposal. Invoices shall be sent to Client
electronically upon completion of the Services and delivery of the applicable Deliverable(s) to Client,
or, according to the Project Proposal. If Client defaults in any payment when due, (a) interest of
1.5% will be accrued per month of the overdue payment as of the date when such payment is due,
and (b) if such payment default is not rectified within thirty (30) days of receiving written notice of the
alleged breach or failure, Genfine may, at its option and without prejudice to its other lawful
remedies, delay performance or defer delivery. All payments due hereunder shall be made in USD
or other currency as agreed by both parties.
- Taxes and Other Charges.
Unless Parties agree in writing, Client will be responsible for any use tax, sales tax, excise tax,
custom duty, inspection or testing fee, or any other taxes, fees, duties or charges imposed by any
governmental authority, relating to or measured by the transaction, in addition to the prices quoted or
invoiced in the Project Proposal, except for any taxes owed for Genfine income which is solely
Genfine obligation. If Genfine is required to pay any such taxes (except for any taxes owed for
Genfine income), custom duties, fees or charges, Client shall reimburse Genfine thereof or provideGenfine an exemption certificate or other document acceptable to the authority imposing the taxes, duties, fees, or charges at the time the order is placed.
- Materials and Information.
Client will provide Genfine with sufficient amount of its information and materials such as cells,
compounds, samples, or other substances needed to complete the Services (Client Materials, as
well as comprehensive data or information concerning the stability, storage and safety requirements
of such Client Materials needed by Genfine to complete the Services. Genfine will use Client
Materials in accordance with the Service Agreement and only in the execution of Services for the
benefit of the Client. Unless otherwise requested by the Client, upon completion of the Services any
remaining Client Materials will be destroyed. Genfine will not transfer or provide Client Materials, in
whole or in part, to any third party, other than a subcontractor, without the Client prior written
approval. Client warrants that (a) it has the appropriate right or license to the Client Materials for the
purpose of this Service Agreement, and that Genfine use of such Client Material for performance of
the Service in accordance with this Service Agreement shall not infringe the proprietary rights,
including but not limited to the patent or trade secret rights, of any third party; and (b) the Client
Materials will be packed in impervious materials, free of any pathogens, hazardous chemicals,
microbes, toxins or infectious agents that are harmful to humans, animals or plants, and they will not
require being handled in BSL-3 or BSL-4 facilities.
8.1 Client will own all rights throughout the world to all inventions, discoveries, improvements, ideas,
processes, formulations, products, computer programs, works of authorship, databases, trade
secrets, know-how, information, data, documentation, reports, research, creations and all other
products and/or materials arising from or made in the performance of Services (whether or not
patentable or subject to copyright or trade secret protection) (collectively, with all associated
intellectual property rights, the Deliverable). At Client costs, Genfine will assign and does assign
to Client all right, title and interest in and to all Deliverables and will promptly disclose to Client all
Deliverables. For purposes of the copyright laws of the United States, Deliverables constitute works
made for hire", except to the extent such Deliverables cannot by law be works made for hire. Upon
completion of the Services, Genfine will archive materials, data and documentation obtained or
generated by Genfine in the course of preparing for and providing Services, including computerized
records and files (collectively, the Records) for a period of one (1) year. The Records will be
disposed and destroyed one (1) year after the completion of Services.
8.2 Notwithstanding the foregoing, Genfine will retain full ownership rights in and to all working
templates, instrument operation programs, methodologies, processes, technologies and other
materials developed or licensed by Genfine and its Affiliates prior to or apart from performing its
obligations under this Agreement and the modifications and improvements thereto (collectively, with
all associated intellectual property rights, the Genfine Property regardless of whether such
Genfine Property is used in connection with Genfine performance of its obligations under this
- 9.1 Definition. Confidential Information means any and all non-public scientific, technical, financial
or business information, or data in whatever form (written, oral or visual) that is (a) furnished or
made available by one party (the &Discloser) to the other (the Recipient) or developed by Genfine
in connection with Services; and (b) if Client is the Discloser, such information (i) if in tangible form,
is labeled in writing as proprietary or confidential; or (ii) if in oral or visual form, is identified as
proprietary or confidential at the time of disclosure or within fifteen (15) days after such disclosure.
Confidential Information of Client includes (x) Client Materials, Deliverables and Records; (y)
development and marketing plans, regulatory and business strategies, financial information, and
forecasts of Client; and (z) all information of third parties that Client has an obligation to keep
- 9.2 Obligations. During the term of this Agreement and for a period of ten (10) years thereafter (and
in the case of trade secrets, until such time as Discloser no longer treats such information as a trade
secret), Recipient agrees to (a) hold in confidence all Discloser Confidential Information, and not
disclose Discloser Confidential Information without the prior written consent of Discloser; (b) use
Discloser Confidential Information solely to carry out Recipient rights or obligations under this
Agreement; (c) treat Discloser Confidential Information with the same degree of care Recipient
uses to protect Recipient own confidential information but in no event with less than a reasonable
degree of care; and (d) reproduce Discloser Confidential Information solely to the extent necessary
to carry out Recipient rights or obligations under this Agreement, with all such reproductions being
considered Discloser Confidential Information.
9.3 Permitted Disclosures. Recipient may provide Discloser Confidential Information solely to its
employees or contractors (but if Recipient is Genfine, then solely to Genfine Personnel on a need-to-
know basis and solely as necessary to carry out Recipient rights or obligations under this
Agreement; provided, that Recipient remains liable for the compliance of such employees orcontractors (or if Genfine Recipient, the compliance of such Genfine Personnel) with the terms of
- 9.4 Exceptions. Recipient& obligations of non-disclosure and non-use under this Agreement will not
apply to any portion of Discloser Confidential Information that Recipient can demonstrate, by
i. is generally known to the public at the time of disclosure or becomes generally known
through no wrongful act on the part of Recipient;
ii. is in Recipient possession at the time of disclosure other than as a result of Recipient&
breach of any legal obligation;
iii. becomes known to Recipient on a non-confidential basis through disclosure by sources other
than Discloser having the legal right to disclose such Confidential Information;
iv. is independently developed by Recipient without reference to or reliance upon Discloser&
If Recipient is required by a governmental authority or by order of a court of competent jurisdiction to
disclose any Confidential Information, Recipient will give Discloser prompt written notice of such
requirement or order and Recipient will take all reasonable and lawful actions to avoid or minimize
the degree of such disclosure. Recipient will cooperate reasonably with Discloser at Discloser
expense in any efforts to seek a protective order.
9.5 Each Party agrees that its obligations hereunder are necessary and reasonable in order to
protect the other party and the other party business, and expressly agrees that monetary damages
would be inadequate to compensate the other party for any breach of the terms of this Agreement.
Accordingly, each party agrees and acknowledges that any such violation or threatened violation
may cause irreparable injury to the other party, and that, in addition to any other remedies that may
be available, in law, in equity or otherwise, the other Party shall be entitled to seek injunctive relief
against the threatened breach of this Agreement or a Statement of Work or the continuation of any
such breach, without the necessity of proving actual damages or posting bond.
10. Breach and Remedy.
Within one (1) month after delivery by Genfine of the Deliverables hereunder, in the event that any
Services do not meet the specifications or other performance criteria agreed to by Genfine and
Client in writing, then Genfine will, if Client so elects, promptly re-perform such Services within the
time limit as agreed by both parties. And the re-performance service costs shall be agreed by
Genfine and Client in writing.
- 11. Limitation of Liability.
11.1 Disclaimer of Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY
SPECIAL, INDIRECT, COLLATERAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR
DAMAGES OR FOR ANY LOST PROFITS OR LOSS OF OPPORTUNITY IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF ANY NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES OR EVEN IF THE OTHER PARTY IS NEGLIGENT. Any
amounts payable to a third party pursuant to Section 12 shall be considered direct damages for
purposes of this Section.
11.2 The foregoing limitations on liability shall not apply to any liabilities resulting from fraud,
intentional misconduct, or gross negligence by either party or breach of applicable laws by either
12.1 Indemnification by Genfine. Genfine will indemnify, defend and hold harmless Client, its
Affiliates, and its and their respective officers, directors, employees and agents (collectively, the
"Client Indemnitees") against any third party claims, including reasonable attorneys' fees for
defending those claims, to the extent such claims arise out of or relate to (a) performance of
Services (except to the extent such claims result from Client's breach of this Agreement or a Client
Indemnitee's negligence or willful misconduct); (b) any Genfine Indemnitee's negligence or willful
misconduct in performing obligations under this Agreement; (c) Genfine's breach of this Agreement.
12.2 Indemnification by Client. Client will indemnify, defend and hold harmless Genfine, its
Affiliates, and its and their respective officers, directors, employees and agents (“collectively, the
Genfine Indemnitees”) against any third party claims, including reasonable attorneys fees for
defending those claims, to the extent such claims arise out of or relate to (a) the use of the
Deliverables by Client or its Affiliates (except to the extent such claims result from Genfine breach
of this Agreement or a Genfine Indemnitee negligence or willful misconduct); (b) any use of the
Client Materials by Genfine to perform the Services; or (c) any Client Indemnitee negligence or
willful misconduct in performing obligations under this Agreement; or (d) Client breach of this
Agreement; or (e) Client breach of applicable laws and regulations.
12.3 Indemnification Procedures. Each party must notify the other party within thirty (30) days
after receipt of any claims made for which the other party might be liable under this Section, as
applicable. The indemnifying party will have the sole right to defend, negotiate, and settle such
claims. The indemnified party will be entitled to participate in the defense of such matter and to
employ counsel at its expense to assist in such defense; provided, however, that the indemnifying
party will have final decision-making authority regarding all aspects of the defense of the claim. The
indemnified party will provide the indemnifying party with such information and assistance as the
indemnifying party may reasonably request, at the expense of the indemnifying party. Neither party
will be responsible for or be bound by any settlement of any claim/suit made without its prior written
consent provided, however, that the indemnified party will not unreasonably withhold or delay such
- 13. Compliance.
Client from out of the People Republic of China acknowledges and agrees that all Records and
Deliverables (as defined in Section 8) resulting from this Agreement are subject to the export control
laws and regulations of the United States, potentially including but not limited to the Export
Administration Regulations (EAR), and sanctions regimes of the U.S. Department of Treasury, Office
of Foreign Asset Controls (OFAC). Client agrees that all exports related to this agreement will be in
compliance with these laws and regulations. Client shall not, without prior U.S. government
authorization, export, or transfer Records and Deliverables, either directly or indirectly, to any
country subject to a comprehensive U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan,
and Syria etc.) or to any person or entity listed on the Entity List or Denied Persons List maintained
by the U.S. Department of Commerce or the list of Specifically Designated Nationals and Blocked
Persons maintained by the U.S. Department of Treasury. Moreover, Client shall not, without proper
U.S. government authorization, export, or transfer Records and Deliverables to any resident or
national of any country subject to a comprehensive U.S. trade embargo. In addition, Records and
Deliverables may not be exported, re-exported, or transferred to an end-user engaged in activities
related to weapons of mass destruction. Client further agrees that this assurance shall remain in
effect even after termination of this Agreement.
14.1 Upon completion of all the Services and obligations under the Project Proposal, the Project
Proposal and the Service Agreement shall terminate, unless extended or amended in writing by the
14.2 Either Party may terminate the Project Proposal and Service Agreement in the event that the
other Party breaches or fails to comply with any material provision of the Service Agreement, and
fails to remedy the breach or failure to the satisfaction of the non-breaching Party within fifteen (15)
days of receiving written notice where the breach or failure is capable of being remedied. In the
event of any termination except to the extent due to Genfine breach of this Agreement, Client will
pay Genfine any monies due and owing Genfine up to the time of termination or expiration, for
Services properly performed and all authorized expenses actually incurred.
- 15. Force Majeure.
Except with respect to the obligation to make payment, neither Genfine nor Client shall be
responsible for failure or delay in performance of its obligations related to the Services due to causes
beyond its reasonable control, including but not limited to, acts of God, governmental actions, fire,
labor difficulty, shortages, civil disturbances, transportation problems, interruptions of power or
communications, failure of suppliers or subcontractors, or natural disasters.
- 16. Additional Notes for Customer Services.
Genfine provides clients with free consulting services including, but not limited to, design and digital
assembly of oligo sequence, antigen sequence design, and help on choice of service packages.
Client shall acknowledge and agree that these additional services are provided free of charge and
are provided for informational purposes only. Client shall acknowledge that Genfine does not warrant
or represent the accuracy or applicability of suggestions provided by Genfine customer service
representatives as part of the free consulting services. Client shall agree that it remains Client
responsibility to evaluate such suggestions before adopting them. Finally, by placing an order with
Genfine, Client will be deemed to have read, understood, and agreed to the above Service
- 17. Assignment and Delegation.
This term of Service Agreement and Services contemplated hereunder are personal to Genfine and,
except as permitted in writing by Client, shall not be assigned, transferred or subcontracted by
Genfine. Any assignment, transfer or subcontracting of the Project Proposal and Service Agreement
in violation of this Section shall be null and void. Client may assign or transfer its rights and
obligations, in whole or in part under the Project Proposal and Service Agreement upon written
notice to Genfine, provided that no such assignment or transfer shall relieve Client of its obligations
hereunder. This Service Agreement shall be binding upon and inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and permitted assignees.
18. Entire Agreement.
The Project Proposal and Service Agreement contains the entire agreement between the Parties
relating to the subject matter hereof, and all prior understandings, representations and warranties
between the Parties are superseded by the Project Proposal and this Service Agreement. In the
event that both Parties have executed a separate Master Services Agreement (hereinafter referred
to as MSA”) or other agreements governing the performance of the Services hereunder, then the
separate MSA shall prevail.
- 19. Independent Contractor.
Nothing herein shall create any association, partnership, joint venture, fiduciary duty or the relation
of principal and agent between the Parties hereto, it being understood that each Party is acting as an
independent contractor, and neither Party shall have the authority to bind the other or the other
representatives in any way.
- 20. Waivers.
Any delay in enforcing a party rights under this Agreement, or any waiver as to a particular default
or other matter, will not constitute a waiver of such party rights to the future enforcement of its
rights under this Agreement, except with respect to an express written waiver relating to a particular
matter for a particular period of time signed by an authorized representative of the waiving party, as
- 21. Counterparts.
The Project Proposal with this Service Agreement may be executed by facsimile, in PDF by email or
other electronic means, and in counterparts, both of which shall be deemed an original and together
shall constitute one instrument.