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    Terms and Conditions of Service

    Cynogen Terms and Conditions of Service

    All work and services performed and all obligations assumed by Cynogen Inc., or its affiliates, employees, agents, contractors and subcontractors (collectively, “Cynogen”) are subject to the following Terms and Conditions. By submitting samples (“Samples”) to and/or requesting services (“Services”) from Cynogen, you (“Customer”) shall be deemed to have accepted and agreed to these Terms and Conditions:

    Cynogen shall perform only those Services expressly requested by Customer and which are accepted and agreed to by Cynogen, and only with respect to the Samples provided by Customer.

    1. Customer represents, warrants and covenants to Cynogen that: (a) Customer has all right, title and interest in and to any Samples provided to Cynogen, or that it has the right to provide such Samples to Cynogen in connection with the Services; (b) if the Samples provided by Customer contain (or are suspected to contain) any hazardous materials or active infectious agents, including without limitation, bacteria, fungae, mycoplasmas, prions, viruses or other materials that may be harmful to humans, the Samples will be packaged, labeled and shipped appropriately and in accordance with all applicable laws; (c) if the Samples include human specimens, the Samples will not contain any information that would make the sources identifiable or readily ascertainable; (d) Customer has obtained all required consents from third parties, if any, prior to providing the Samples to Cynogen; and (e) Customer is not requesting the Services for, and shall not use any results of the Services: (i) to diagnose, screen or monitor a disease in a patient; (ii) to make a medical decision or intervention; or (iii) in conjunction with patient records or treatment.
    2. If Customer requests that any unused Samples be returned to Customer, Cynogen will return all such Samples according to Customer’s instructions (at Customer’s expense) following completion of the Services. Otherwise, Cynogen will properly dispose of all unused Samples thirty (30) days after completion of the Services; provided, however, that Cynogen may retain and use any unused Samples that are not returned to Customer solely for Cynogen’s own non-commercial research purposes, and Customer will have no right, title or interest in or to any results of such research;
    3. The Services and any reports or other documents generated as a result of the Services are intended for Customer’s use and benefit only and not for the use or benefit of any other person or entity. If Customer provides any report or document delivered by Cynogen hereunder to any third party, Cynogen shall have no responsibility to such third party with respect to any contents of such report or document.
    4. At this time, Cynogen’s Services are limited solely to Customers in the United States. Cynogen shall have no obligation to perform Services for, or to return Samples to, any Customer located outside the United States.
    5. If Customer is not approved for credit purchases, payment shall be required before Cynogen performs any Services. If Customer is approved for credit purchases, all invoices for Services are due and payable upon receipt and will be delinquent if not paid within thirty (30) days from the date of the invoice. Delinquent account balances shall accrue interest until paid at the rate of 1½% per month or, if less, the highest rate allowed by law. Customer shall also be responsible for Cynogen’s costs of collection, including attorneys’ fees.
    6. Cynogen warrants to Customer that the Services will be performed in a professional manner consistent with the industry standards for similar services under similar circumstances. Cynogen will correct any Services not in compliance with the foregoing warranty brought to its attention within thirty (30) days after the Services are performed. If Customer is delinquent in paying any invoice for Services performed by Cynogen, the foregoing warranty shall become null and void with respect to such Services. THE FOREGOING IS CYNOGEN’S ONLY WARRANTY CONCERNING THE SERVICES AND CYNOGEN EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE.
    7. IN NO EVENT WILL CYNOGEN BE RESPONSIBLE FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUES) OF CUSTOMER OR OF ANY THIRD PARTY. CYNOGEN’S TOTAL LIABILITY FOR ANY DAMAGES ARISING FROM ANY ACT OR DEFAULT OF CYNOGEN IN CONNECTION WITH THE SERVICES (WHETHER ARISING FROM CYNOGEN’S NEGLIGENCE, NON-PERFORMANCE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES TO WHICH THE DAMAGES RELATE.
    8. Customer will indemnify, defend and hold harmless Cynogen (including its directors, officers, employees, agents, contractors and affiliates) from and against any and all liabilities, claims, suits, actions, damages, expenses and penalties (including reasonable attorneys’ fees) (collectively, “Damages”) that any of them may suffer and that arise out of or in connection with: (a) death, bodily injury or property damage directly or indirectly caused by the Samples; (b) the infringement by the Samples of any intellectual property rights vested in any third party; (c) Customer’s use of the results of the Services or any work product delivered by Cynogen in connection the Services; (d) Customer’s breach of these Terms and Conditions; or (e) Customer’s violation of any applicable law. Notwithstanding the foregoing, Customer will not be required to indemnify Cynogen to the extent that any Damages are finally determined to have resulted from the gross negligence or willful misconduct of Cynogen.
    9. Any claim by Customer against Cynogen related to the Services must be made in writing within ninety (90) days after completion of the Services giving rise to such claim. Failure to give such written notice within such ninety (90) day period shall constitute a bar or irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the performance of the applicable Services.
    10. Customer’s submission of a Sample to Cynogen constitutes acceptance of these Terms and Conditions, which constitute the entire agreement between the parties with respect to such Sample and the Services related thereto. Any prior oral or written discussions related to such Samples or Services are superseded. No modification to these Terms and Conditions will be binding upon Cynogen unless agreed to in writing by an authorized individual. No provisions in any purchase order or other form submitted to Cynogen by Customer (other than an unmodified Cynogen form) will be binding upon Cynogen.
    11. If any provision in these Terms and Conditions is held to be invalid, illegal or unenforceable, such provision will be severed and all remaining provisions will continue in full force and effect.
    12. Any claim by Customer against Cynogen shall be governed by the laws of the State of Illinois, exclusive of choice of law principles. In the event the parties cannot resolve any controversy or claim arising out of or relating to the Services, such controversy or claim shall be settled through a confidential, binding, non-reviewable and non-appealable alternative dispute resolution process in accordance with the rules of the CPR Institute for Dispute Resolution. The parties shall select a sole mutually acceptable independent, impartial and conflicts-free neutral to preside over the proceeding. If the parties are unable to agree on a mutually acceptable neutral, each party will select one independent, impartial and conflicts-free neutral and those two neutrals will select a third independent, impartial and conflicts-free neutral. No discovery shall be permitted by any means. The hearing shall be conducted on two (2) consecutive days, with each party entitled to five (5) hours of hearing time to present its case, including cross-examination. The neutral shall adopt in its entirety the proposed ruling and remedy of one of the parties on each disputed issue but may adopt one party’s proposed rulings and remedies on some issues and the other party’s proposed rulings and remedies on other issues. The neutral’s award may be entered as a final judgment in any court having jurisdiction.
    13. Cynogen may change these Terms and Conditions at any time, without notice to Customer. Any such changes will apply to Samples submitted and Services requested from and after the date of such change.