Terms and Conditions of Service
1. Purpose; Description of Services; Amendments and Acceptance
1.1. Purpose. These Terms and Conditions (“TCS”) shall govern the delivery of any goods, designs, data, reports, results, technology, research, consulting, or services of any kind (collectively “Services”) by Particulate Solid Research, Inc., 4201 West 36th Street, Building A, Chicago, Illinois 60632 (“PSRI”).
1.2. Changes and Modifications; Complete Terms and Conditions. No change, modification or amendment to these TCS shall become effective unless they are written and have been approved by the President and CEO of PSRI. Further, these TCS shall be complete and, except to the extent expressly modified in a Proposal (defined in Article 1.3 below), shall be the only terms and conditions of PSRI’s Services. Further, any and all terms proposed by the client, whether as a part of the client’s PO or other document or process, purporting to set out any terms and conditions or to modify these TCS shall be null and void.
1.3. Description of Services; Acceptance. Services shall be described in reasonable detail in writing (the “Proposal”). Each Proposal shall (i) describe the project, including objectives, experimental methods, and outcomes to be delivered by PSRI to the client; (ii) state the fees to be paid to PSRI for the Services, and all other expected costs, if any, all of which the client shall pay according to the payment terms provided in Article 2 below, unless otherwise stated in the Proposal; and (iii) set forth all such other terms PSRI sees fit. A Proposal submitted to the client shall be considered “accepted” as of the date PSRI receives and accepts the client’s purchase order (or “PO”) and such acceptance by PSRI shall constitute a firm and final commitment by PSRI and the client.
1.4. Change or Modification of Services. No changes or modifications of the Services shall be effective unless such changes or modifications have been specified in writing and approved by the President and CEO of PSRI.
1.5. Acceptance. Each Proposal shall be valid for 90 days beginning on the date it is delivered by PSRI to the client and shall be considered withdrawn by PSRI unless the client shall have accepted such Proposal (as provided in the above Article 1.3) within the 90-day period.
2. Fees and Payment Terms; Taxes
2.1. Fees for Services Rendered. PSRI’s fee for Services rendered shall be paid by the client within 30 days of the date of each PSRI invoice, unless PSRI and the client otherwise agree in writing. Any payments received after the 30-day period may be subject to interest charged at an annual percentage rate (APR) of 4%. Further, any financial, transactional, or administrative charges, professional fees, or any other costs incurred by PSRI to collect payments from the client shall be the responsibility of the client and PSRI shall bill the client for all such costs and the client shall pay the billed amount within 30 days of the date of PSRI’s bill.
2.2. Taxes and other Government Fees. The client acknowledges and agrees that as between the client and PSRI, the client shall be fully responsible for and shall pay any sales taxes, value-added taxes, service taxes, or other taxes or fees imposed by any government (or governmental entity) anywhere in respect of the Services. For the avoidance of doubt, in no event shall PSRI collect such taxes or have any responsibility, or incur any obligation or liability with respect thereto, and client hereby indemnifies and holds harmless PSRI from and against any such taxes.
3.1. Limited Warranty. PSRI provides a limited warranty, for a period of 180 days, in respect of any hardware built by PSRI for the client, provided that such limited warranty shall cover only manufacturing defects and shall not be valid if the hardware in question or components thereof have been misused or abused by the client. PSRI will make good faith efforts to provide Services in a professional manner but does not represent or warrant that such good faith efforts will be successful or will provide any particular results. Except as provided in the foregoing in this Article 3.1, PSRI makes no other representations or warranties of any kind as to the Services or any designs, goods, information, data, reports, materials, or other deliverables provided to the client (collectively, the “Deliverables”) are fit for any particular purpose or will not infringe on the patents or other rights of any third party, and the client agrees to indemnify and hold harmless, and hereby indemnifies and holds harmless, PSRI and its employees and agents from and against any costs and expenses, including attorneys’ fees, they may suffer as a result of the client’s use of the Deliverables.
3.2. Force Majeure. In no event shall PSRI be liable for any delay, failure to perform, or any other breach of any term or condition of the Services as a result of any unforeseeable or unavoidable circumstances beyond the control of PSRI and not occasioned by the fault or negligence of PSRI.
3.3. No Damages; Liabilities. In no event shall PSRI suffer or have any damages or liabilities of any kind and howsoever caused or arising from the Services or the clients use of any Deliverables, whether direct or indirect, and the client agrees to indemnify and hold harmless, and hereby indemnifies and holds harmless, PSRI and its employees and agents from and against any damages, liabilities, costs, and expenses, including attorneys’ fees, they may suffer as a result of the client’s use of the Deliverables.
Client PSRI hereby expressly disclaims any such liability, howsoever caused.
4. Termination of Services; Effect of Termination
4.1. Termination. Termination of the Services, whether by the client or PSRI, will result in a termination of all work and no Services will be provided by PSRI after the termination date.
4.2. Payments upon Termination. All fees and other costs accrued for Services rendered prior and up to the date of the above-mentioned termination by the client or PSRI shall be paid promptly and in no event later that as provided in the above Article 2.
4.3. Deliverables upon Termination. Upon termination by either the client or PSRI under the above Article 4.1, PSRI will provide the Deliverables, to the extent complete as of the date of termination, to the client within 60 days of the termination date.
5.1. Undertaking by PSRI. PSRI undertakes to hold, and to have its personnel and any subcontractors hold, confidential any information (i) communicated to PSRI by the client for the Services, (ii) PSRI may become aware of during its performance of the Services, or (iii) resulting from the Services, whatever the nature (economic, scientific, legal, technical, etc.) and form of such information. Further, PSRI undertakes not to reproduce, publish, distribute, or otherwise make the Deliverables available to the public.
5.2. Confidential Treatment and Limited Use of Certain Information. The client agrees not to reproduce, communicate, or use for itself or the benefit of any other party, for any purpose other than the Services., any PSRI intellectual property or information identified by PSRI as proprietary and confidential.
5.3. Continuing Obligations of Confidentiality and Non-Use. The obligations of this Article 5 shall survive the completion or any termination of Services, whatever the cause, for a period of ten (10) years, provided that with respect to any information identified as trade secrets at the time it is disclosed, the obligations shall continue for as long as such information is considered a trade secret under applicable law.
6. Intellectual Property
6.1. Independent Intellectual Property. Any patents, patent applications, industrial designs, inventions (whether or not patentable), designs, trade secrets, ideas, works, methodologies, technologies, innovations, creations, concepts, moral rights, development drawings, research, analyses, know-how, experiments, copyrights, data, formulae, methods, procedures, algorithms, processes, procedures, systems or techniques, and trademarks and trade names owned by each party prior to, or independent of the Services shall remain the property of the owning party (respectively, the “PSRI IP” and the “Client IP”). With respect to any intellectual property developed during the Services, PSRI provides the following two options to the client as follows, depending on whether or not the client is a member of the PSRI consortium:
Option A (for consortium members ONLY):
6.2A. Ownership of Deliverables. The Deliverables, together with any inventions, developments, improvements, modifications, software, reports or any other documents specifically prepared by PSRI for the client, whether patentable or not, shall become the property of the client upon payment by the client of PSRI’s fees for Services and such as other costs and expenses incurred in connection with the Services (collectively, the “Client Property”).
6.3A. Patent Applications. If the client chooses to file patent applications anywhere in respect of any Client Property:
(a) inventorship in each such patent application shall be determined in accordance with applicable US patent laws;
(b) PSRI agrees that each employee or agent named as an inventor (co-inventor) shall promptly execute and return any oaths, declarations, and all other documents required in such applications (including responses to office actions); and
(c) PSRI shall provide such other assistance reasonable required by the client in the prosecution of the patent applications.
6.4A. Patenting Costs. All costs and expenses relating to any patent applications and patents granted thereon shall be the responsibility of the client and in no event shall PSRI, its employees or agents incur any costs or have liability of any kind in respect of such patent applications and patents. For the avoidance of doubt, in no event shall PSRI and its employees and agents acquire any interest or title in and to any patent applications and the patents granted thereon.
6.5A. Third Party Rights. The client shall be responsible for all licenses, fees, royalties, and other charges relating to the client’s use of the Deliverables.
Option B (for non-members):
6.2B. Grant of exclusive license. PSRI hereby grants to the client and the client hereby accepts an exclusive, perpetual license to make or have made, sell or have sold, use or have used the Deliverables, together with the right to make or have made, sell or have sold, use or have used the PSRI IP to the extent such PSRI IP or part thereof is required or necessary for the operation, use, exploitation, or practice by the client of the Deliverables or is otherwise inseparable from the Deliverables. The foregoing license shall become effective upon the payment by the client and receipt by PSRI of the last and final installment of the Fee and all other payments due and payable by the client to PSRI in respect of Services rendered.
6.3B. No other Rights. Without in any way limiting PSRI’s rights in and to the PSRI IP, and for the avoidance of doubt, the client acknowledges and agrees that (i) PSRI will use PSRI IP to provide Services, (ii) PSRI may develop or make improvements to the PSRI IP while providing Services, and (iii) all PSRI IP—together with any such improvements—belong to PSRI, and that except as specified herein, the client shall have no right or interest of any kind in such PSRI IP.
6.4B. Third Party Rights. The client shall be responsible for all licenses, fees, royalties, and other charges, in favor of any third party, relating to the client’s use of the Deliverables and the license and other rights granted to the client by PSRI.
7. Materials Handling
7.1. Test Materials and Supplies. The client agrees to arrange and ship or have shipped to PSRI all test materials and other supplies required for the Project (collectively the “Materials”) at Client’s own cost and expense. The client acknowledges and agrees that PSRI will not accept any Material delivered without an MSDS.
7. 2 Return, Disposal, or Storage of Materials. Upon completion or termination of Services, PSRI shall:
(a) return all Materials (provided to PSRI for the Project but unused) to the client and, in that case, PSRI will charge the client all costs associated with shipping (via the client’s approved shipper), together with a one-time handling fee of US$1,000 per pallet for non-hazardous Materials and US$2,500 per pallet for hazardous; or
(b) dispose of such Materials at a certified disposal facility and, in that case, PSRI will charge the client the actual disposal fee charged by the certified disposal facility, together with an administrative fee equal to 20% of the certified disposal facility’s total fee; or
(c) have such Materials stored at PSRI’s site and, in that event, PSRI will charge the client US$1,000 per pallet per month for non-hazardous Materials and US$2,500 per pallet per month for hazardous Materials, in either case not to exceed a storage maximum of four (4) 55-gallon drums.
The client agrees to promptly give written notice to PSRI indicating whether the client desires that the Materials be returned, disposed of, or stored as provided in the foregoing in this Paragraph 7.2. Upon receiving the client’s notice, PSRI shall send an appropriate invoice to the client in respect of the return shipping, disposal, or storage of the Materials. The client agrees that it is up to PSRI to determine the hazard or non-hazard potential of all Materials.
8. Amicable Settlement of Disputes; Governing Law and Venue
8.1. Amicable Resolution of Disputes. PSRI and the client shall make good efforts to discuss in good faith and to amicably resolve any disputes or disagreements that may arise during the Services.
8.2. Governing Law; Jurisdiction and Venue. These TCS shall be interpreted according to the laws of the State of Illinois without regard to any conflict of laws provisions, and any claim, dispute, controversy, or cause of action arising from or in relation to Services shall be subject to the exclusive jurisdiction of the state or federal courts seated in Cook County, State of Illinois. The client hereby irrevocably consents and agrees to the personal jurisdiction of any state or federal court of competent jurisdiction seated in Cook County, State of Illinois with respect to any claim, dispute, controversy, or cause of action arising from the Services.