PROFESSIONAL SERVICES TERMS AND CONDITIONS

1. SCOPE.

1. These terms and conditions (the “Terms”) between Matrix Sciences International, Inc., its subsidiaries and affiliates (“Service Provider”) and the Client (the “Client”) relating to certain Services as requested by the Client (as defined below), govern the relationship between Service Provider and Client.
2. A Service Request Form, Analysis Request Form (ARF), Chain of Custody Form, Statement of Work  or other quote or proposal format (collectively a SOW) is any document, in any form, including without limit email, fax, scan or Internet request, that acts as a service request for testing, advisory, research or analytics services, or a combination, and sets out the requested services to be provided to Client by Service Provider or its agents (the “Services”). Client agrees that when Client signs or submits a SOW or other service request form or otherwise indicates Client’s acceptance of services (e.g. verbally via telephone at the Client’s desire to place and approve a service request verbally), an agreement will be formed between Client and Service Provider for the provision of the Services which will be governed exclusively by these Terms (unless a Master Services Agreement is executed by both parties).
3. If for any reason the SOW is not signed by Client, Service Provider is entitled to assume that any conduct by Client or Client’s agents that recognizes the existence of a contract pertaining to the subject matter of the SOW, including but not limited to Client providing samples to Service Provider is acceptance by Client of these Terms.  
4. Services may include, but are not limited to, the provision of an online software application by Service Provider to Client for Client to access and use for testing results and potential other uses (as defined below) which is offered by Service Provider for use by its clients (collectively, with any updates or enhancements thereto, the “Software Platform”).   As used herein, “Software Platform” means the host system, Internet infrastructure and application platform and any other   communication systems, network connections and interfacing capabilities used by Service Provider in order to provide Client the ability to use a software application, and related applications to allow an online user interface to access Client test results and other Client information on the Software Platform.

2. SERVICE PROVIDER’S RESPONSIBILITIES.

1. Service Provider shall perform the Services in a professional manner, consistent with industry practices, laws and regulations applicable to the Services.
2. Service Provider will have sole control and discretion over the means, methods, techniques, equipment, sequences and procedures its uses to perform the Services, without having to confer with, or obtain the consent or approval of, Client.
3. Service Provider will comply with all applicable federal, state and local laws, rules and regulations applicable to the performance of its obligations under this Agreement
4. Service Provider shall provide Client with the results of the Services performed (“Test Results”) in an agreed upon format or otherwise, at Service Provider’s discretion, including without limitation, in a certificate of analysis, a written report, or any other form   of deliverable created by Service Provider hereunder (each a “Test Report”). Service Provider will provide Client with the results of Advisory Services in the form of observations, findings, advice and/or recommendations in a written report (“Deliverables”) in an agreed upon format or otherwise, at Service Provider’s discretion (Advisory Report).  Client understands and agrees that the Test Results and any Reports will be based solely upon the information and materials Client supplies to Service Provider. The Results and Reports are intended for use by persons having sufficient professional skill and training in the interpretation of such information.  Interpretation of any Results or Reports is Client’s sole responsibility.  

3. CLIENT’S RESPONSIBILITIES.

1. Client hereby represents and warrants that it has the full right and authority to enter into a Client SOW and agrees that these Terms apply.
2. Client may desire or Service Provider may require Client to designate a person or entity to act   as   Client’s   authorized   representative with respect to the Services (“Representative”).  Such Representative shall have complete authority to provide instructions, samples and direct the Services, receive information and data, and to order, at Client’s expense, additional services from Service Provider. Client further agrees that any additional services ordered by Client or its Representative will be considered “Services” hereunder subject to these Terms.
3. Client acknowledges that Client is solely responsible for determining whether the Services will achieve the results Client is seeking. Client represents and warrants that (i) it has sufficient and reasonable commercial knowledge and experience with respect to applicable laws and regulations related to its products and business, (ii) that Client is in material compliance with all applicable laws and regulations, including but not limited to, export and data privacy laws and regulations of any relevant jurisdiction with respect to Client’s use of any Software Platform
4. Client assumes all responsibility for the compliance of its products and the compliance by any and all persons or entities authorized by Client to provide Client Content (as defined below) (collectively, “Third Party Content Providers”) and other subcontractors and suppliers of Client with and under any and all applicable Laws. Client shall independently confirm compliance with any applicable Laws and shall not rely solely upon Results or Service Reports furnished by Service Provider to confirm such compliance.
5. Client acknowledges and agrees that implementing a withdrawal or recall of products based on the Results, including interim or preliminary Results, is Client’s sole decision, sole regulatory, legal and financial responsibility and at Client’s sole risk. 
6. Client shall only permit Client Content (as defined below) to be provided to Service Provider to  the  extent  for  which  Client has  all permissions,  approvals  and  legal  rights  necessary  to  provide  such Client Content for use by Service Provider and potential storage within any applicable Software System, and Client represents  and  warrants  that  all  Client Content  provided  in  connection  herewith  does  not  and  will not infringe or  otherwise  violate  any  third  party  intellectual property rights  or  applicable  law.   Client shall be solely responsible for any legal liability arising out of or relating to Client Content.  “Client Content” means data, reports, test   results, audits, certificates, documents or other information provided to Service Provider in any form or uploaded to any Software System by or on behalf of Client, but expressly excluding any Confidential Information of Service Provider.
7. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE TO NOTIFY SERVICE PROVIDER IMMEDIATELY IN THE EVENT OF ANY USER OF THE SOFTWARE PLATFORM AND/OR ANALYTICS PLATFORM WHO IS TERMINATED, RESIGNS OR OTHERWISE NEEDS TO HAVE ACCESS DISABLED IN ORDER TO PREVENT THE UNAUTHORIZED ACCESS OR USE OF INFORMATION.

4. RECORD RETENTION AND SAMPLE MANAGEMENT.

1. Client acknowledges that, due to the nature of the Services to be conducted, Service Provider is under no obligation at any time to return or dispose of samples or other materials provided by Client to Service Provider for testing or analytical services.
2. Service Provider shall retain all relevant records relating to the Services performed for Client (including, but not limited to Reports, Results and Client Content) for five (5) years from the date the Services are performed, or as otherwise required by law (the “Retention Period”).  Upon the   expiration   of   the   Retention   Period, Service Provider will have the right to destroy or otherwise dispose of any and all records relating to the Services in its possession.  Client will pay all reasonable expenses incurred by Service Provider in transferring Client Content and other records to Client.

5. FEES AND PAYMENTS.

Unless otherwise stated in the SOW, all prices for the Services are expressed in US dollars, and all amounts payable are exclusive of tax. Unless otherwise stated in the applicable SOW, Client shall pay Service Provider for performance of the Services and all related expenses in accordance with Service Provider’s invoices, which shall be paid within thirty (30) days of the date of invoice. Any balance remaining unpaid after the due date may be subject to a service charge of 1.5% per month until paid, but in no event shall such charge exceed the rate permitted by applicable law. If legal action or collection proceedings are necessary to enforce Client’s payment obligations, Client shall be liable for Matrix’s costs relating to invoice collection, including, court costs, filing fees all and attorney’s fees. Service Provider reserves the right, prior to performing any Services, to require from Client satisfactory security for performance of Client’s obligations.  

6. CLIENT CANCELLATIONS.

Except for routine testing Services, if Service Provider receives a written cancellation or postponement notification from Client during the ten (10) business day period preceding the date of a scheduled Service, then Service Provider may charge, and Client agrees to pay to Service Provider the equivalent of 75% of the contracted rate for the Services for each day cancelled or postponed, plus expenses already incurred by Service Provider.  If such notification is received between the eleven (11) and fifteen (15) business day period preceding the date of a scheduled Service, Service Provider may charge, and Client agrees to pay Service Provider 50% of the contracted rate for the Services per day for each day cancelled or postponed plus any expenses incurred as of that date.  Client acknowledges that the actual damages likely to result from cancellation or postponement of scheduled Services are difficult to estimate on the date hereof and would be difficult for Service Provider to quantify insofar as cancellation or postponement may impact Matrix’s reputation or require Service Provider to provide non-monetary concessions to its suppliers and contractors, and it would be difficult to re-engage other work in such short notice. Client agrees, therefore, that amounts specified above constitute a reasonable measure of damages given the nature of the losses that may result, and any such payments are not intended to serve as penalties for any such action by Client.

7. CONFIDENTIALITY AND INTELLECTUAL PROPERTY.

1. Unless required by law, neither party may disclose the other party’s confidential information, including these Terms and any detail related to the SOW, without prior written consent of the disclosing party. Confidential Information” means all information or items (including information, data and materials relating to current or prospective products and processes) made available (whether intentionally or otherwise) to a party or its affiliates or subcontractors, or its or its affiliates’ or its subcontractors’ employees, agents and other representatives, by or on behalf of the other party, relating to the business, operations, products, affairs, technologies, test methods, know-how, software, plans and strategies of such other party, whether observed or provided orally, in written, graphic or electronic form, or in the form of samples, and whether or not marked, labeled or otherwise identified as “confidential” or “proprietary”.  If Client is granted access to Service Provider’s facilities, Client may be exposed to Service Provider’s confidential and proprietary information, which shall remain the sole property of Service Provider, and Client agrees to keep such information confidential and shall not use or disclose it to any third party without Service Provider’s prior written consent.
2. Any Report, Deliverables or Results furnished by Service Provider is furnished solely    for the benefit of Client and its Representatives and the contents of any such Report or Results shall be the confidential property of Client.   Notwithstanding anything to the contrary in this Agreement, Service Provider reserves the right to utilize the Confidential Information of Client for the Services and otherwise internally for the limited purposes of the conduct of its business, including training, research and education, and to use Client Confidential Information in the aggregate, to determine trends in the industry for the express and limited purpose of establishing the best practices for inspections, services and testing in the industry, and use of the Confidential Information of Client, in the aggregate, for this purpose will not allow the identification of Client or disclosure of Client-identifiable Confidential Information.   
3. Client shall not, without Service Provider’s prior written consent, (i) use Service Provider’s name, trademark, or logo; or (ii) use any Results, Deliverables or Report in any manner which may cause harm to Service Provider’s reputation and/or its business.
4. Service Provider, and/or its third-party providers and licensors, shall at all times retain ownership of all rights, title and interest in and to all Software Platforms and any copies and parts thereof (including all enhancements, revisions, updates, modifications, supplements, interim works and derivative works thereto), any related technical know-how and all copyright, patent and other intellectual property rights therein.  Client understands that, from time to time, Client may provide information to Service Provider on which Service Provider may partly rely to design, structure or develop a modification, improvement, or update to the Software Platform. (“Developments”). Client hereby consents to Service Provider’s use of such information to design, to structure or to determine the scope of such Developments and acknowledges and agrees that any such Developments shall be, and shall remain, the sole and exclusive property of Service Provider. Client will have no rights, ownership or interest in or to any Software Platform except for (as applicable) a limited license for use, and Service Provider expressly reserves all rights not otherwise specifically granted thereunder.
5. Except to the extent specifically set forth in these Terms or in a SOW, no right to license whatsoever, either express or implied, is granted under any copyright, trade secret, trademark, trademark application, patent, patent application, or any other proprietary right now or hereafter owned or controlled by Client or Service Provider.

8. LIMITATION OF LIABILITY.

1. EXCEPT TO THE EXTENT OF THE LIMITED WARRANTIES SET FORTH IN SECTION 2 AND IN THIS SECTION 8, AND NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED HEREIN OR IN ANY ARF, SOW, REPORT, RESULT, DELIVERABLE OR OTHER STATEMENT, SERVICE PROVIDER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR SOFTWARE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, DATA ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE.
2. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT, OTHER THAN AS EXPRESSLY INDICATED HEREIN OR IN ANY APPLICABLE SOW, THE SOFTWARE PLATFORM DESCRIBED HEREIN, AS WELL AS ANY UPDATES, MODIFICATIONS AND OTHER MATERIALS, AND SERVICES, ARE PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. IN   ADDITION, CLIENT EXPRESSLY AGREES THAT ACCESS TO THE SOFTWARE   PLATFORM MAY   BE   LIMITED    OR UNAVAILABLE DURING PERIODS OF PEAK DEMAND, SOFTWARE SYSTEM UPGRADES, MALFUNCTIONS, OR SCHEDULED OR UNSCHEDULED MAINTENANCE OR FOR OTHER REASONS. SERVICE PROVIDER MAKES NO WARRANTIES REGARDING, AND DISCLAIMS ALL LIABILITY FOR, THE ACTS   OR   OMISSIONS   OF   THIRD   PARTIES, ANY MATERIALS PROVIDED BY THIRD PARTY LICENSORS, HOSTS OR PARTNERS, ARRANGEMENTS WITH THIRD PARTIES, OR USE OF THIRD PARTY SITES, SYSTEMS OR SERVICES.
3. UNLESS OTHERWISE AGREED, SERVICE PROVIDER’S LIABILITY TO CLIENT FOR BREACH OF THESE TERMS, ANY TERM OF AN SOW, OR OF ANY IMPLIED WARRANTIES, OR FOR ANY GROSS NEGLIGENCE OR OTHER WRONGDOING IN THE PERFORMANCE OF SERVICES OR   OTHERWISE   RELATED   HERETO, IS LIMITED AT CLIENT’S OPTION, TO EITHER RE- PERFORMING THE SERVICE OR REFUNDING THE TOTAL FEE PAID IN RESPECT OF THAT PART OF THE SERVICE.
4. SERVICE PROVIDER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES TO CLIENT OR ITS REPRESENTATIVES (i) FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE (INCLUDING WITHOUT LIMITATION, DAMAGES RELATED TO LOSS OF USE, INACCURATE RESULTS, LOST DATA OR LOST PROFITS) IN ANY WAY ARISING FROM THE SERVICES, USE OF THE RESULTS, THE SOFTWARE PLATFORM, ANY OTHER REPORT OR DATA PROVIDED OR OTHERWISE RELATED HERETO, INCLUDING FOR ANY CLAIMS IN ANY WAY ARISING FROM THE USE, PUBLICATION, INTERPRETATION OR ANALYSIS OF ANY CLIENT CONTENT OR (ii) FOR ANY  CLAIM FOR ANY AMOUNT THAT EXCEEDS THE CHARGES PAID FOR THE SERVICES AT ISSUE. 
5. SERVICE PROVIDER DOES NOT GUARANTEE, EITHER EXPRESS OR IMPLIED, THAT THE RESULTS WILL MEET THE ACCEPTANCE OR OTHER CRITERIA OR EXPECTATIONS OF THE CLIENT, AND SERVICE PROVIDER DOES NOT ACCEPT RESPONSIBILITY FOR FAILURE TO MEET ANY ACCEPTANCE OR OTHER CRITERIA.

9. INDEMNITY.

1. Service Provider agrees to defend, indemnify and hold harmless Client, its directors,  officers,  representatives,  agents,  employees  and  contractors from and against any and all claims, demands, costs, (including but not limited to reasonable attorneys’ fees)  or  other  cause  of  action (collectively “Claims”)  which  (i)  is  the  proven  direct  result  of Service Provider’s gross negligence or  fraud  in  connection  with  the performance of the Services or (ii) results from a third party claim that     any  Software  Platform  in  unmodified  form   infringes   or misappropriates such  third  party’s  proprietary  intellectual  property  rights; provided, however, that the indemnity provided in subparagraph (A) shall not apply if the alleged infringement arises from: (A) use of Software Platform outside of the intended use, scope and license as granted by Service Provider to Client; (B) use of any Software Platform that has been modified or merged by Client with other programs; (C) Service Provider following the designs, specifications or written instructions of Client; (D) the use of any software in combination with other software or hardware not provided or approved by Service Provider; or (E) the Client Content processed by or stored within the Software Platform.  
2. Client agrees to defend, indemnify and hold  harmless  Service Provider,  its affiliates  and  their  respective  officers, directors,  agents,   employees,  representatives, advisors, and contractors from and  against  any  and  all  Claims arising out of or relating to (except to the  extent  of  any  required  indemnity  of  Client by  Service Provider pursuant  to  Section  9.1  above)  (i) the performance of the Services in accordance with these Terms or any SOW;  (ii)  Client’s  use  of  any  products   reviewed   or analyzed by Service Provider; (iii)   the use of the Results, Deliverables or Reports or    any other data or analysis provided by Service Provider hereunder;  (iv)  any Client Content; or (v) any unauthorized use of or  access  to  the  Software Systems.

10. DISPUTE RESOLUTION.

Except with respect to non-payment by Client to Service Provider(which is governed by Section 5 of these Terms), any dispute between the parties relating to any SOW,  these  Terms,  or  the  breach  thereof  shall be resolved by binding arbitration before a panel of three arbitrators in Chicago, Illinois, pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and each party expressly agrees to resolve any dispute hereunder exclusively in  accordance  with  the full terms and conditions found at www.matrixsciences/terms or othrewise agreed to pursuant to a signed service agreement between the parties.  

11. GENERAL CONDITIONS.

1. These Terms and any open SOW orders may be terminated by Service Provider in the event of any default hereunder by Client or any breach of any material term hereof. If either party for any reason terminates the commercial relationship, Service Provider shall be paid in full for all Services performed and expenses incurred through the termination date, and the Client shall be provided with a report of Services conducted prior to termination.
2. Client may not assign or transfer its obligations or interest in these Terms or any SOW without the prior written consent of Service Provider. Service Provider may assign or transfer some or all of its rights at any time provided such assignee assumes Service Provider’s obligations hereunder.
3. Service Provider may, in its sole discretion, subcontract to other laboratories certain Services and is required to notate on any Certificate of Analysis which laboratory received the subcontracted work.  Service Provider shall not be liable for any damages arising out of or in connection with the analysis provided by a subcontractor unless otherwise agreed to in writing between Client and Service Provider.
4. Service Provider shall not be liable for delays or other problems caused by unforeseen circumstances, compliance   with   governmental   requests, laws, regulations, failure of equipment or testing instruments or other media, or any other event beyond the reasonable control of Service Provider.
5. The relationship between the parties hereunder is of Service Provider and/or its affiliates, subsidiaries and subcontractors serving as an independent contractor.  No partnership, joint venture or agency is created through the provision of the Services.
6. In the event that any of the provisions of these Terms are or become null or void, such provisions shall be deemed to have been deleted from these Terms and the remaining provisions hereof shall remain valid and enforceable.
7. The laws of the State of Illinois (USA) shall govern the validity, interpretation and performance of these Terms and any SOW service orders. Section 10 Dispute Resolution governs the conflicts of laws rules.