STANDARD TERMS & CONDITIONS OF THIRD PARTY VALIDATION AND
VERIFICATION d/b/a ELLIPSE ANALYTICS

 

Third Party Validation and Verification, LLC, d/b/a Ellipse Analytics, (“Ellipse”) shall provide to you, the  “Customer,” laboratory analytical services (the “Services”) as requested from time to time by Customer. Ellipse and Customer may each be referred to herein individually as a “Party” and, together, as the “Parties.” Said Services are subject to the terms and conditions stated herein and comprise the agreement between the Parties (“Agreement”). In the event this Agreement is not executed by Customer, Customer shall be deemed to have accepted all of the terms herein upon delivering samples or materials to be tested (the “Samples”) to Ellipse for testing.

 

SECTION I – STATEMENT OF WORK

 

  1. Testing Services. Ellipse shall conduct the Services as selected by Customer from the Ellipse client portal, at the then quoted price available on the Ellipse website. Ellipse warrants that all Services provided by it will be performed in a good and workmanlike manner with reasonable skill, care, and diligence.

    1. Sample Receipt. Customer shall provide Ellipse with sufficient amounts of all Samples or materials to be tested, together with all other information necessary for Ellipse to perform the Services, including information relating to the storage and safety requirements of the Samples. Customer is responsible for the proper delivery of Samples sent to Ellipse for the performance of Services. Ellipse accepts no responsibility for any loss or damage which may occur to any Samples in transit to Ellipse’s facility or resulting from improper storage and safety requirements provided by Customer. Samples are analyzed as received unless otherwise noted, and the results relate solely to the item(s) submitted for analysis. Capsule and softgel samples are tested as contents only, and results reported per serving are calculated using the fill weight. Average fill weights are available upon request.

    2. Statements of Conformity. Ellipse does not report statements of conformity to specifications, unless required to report results for a specific assay. Measurement uncertainty is only applied to reported values when required to report a statement of conformity.

    3. Modification. All work is performed in accordance with Ellipse’s standard operating procedures and methodologies. Ellipse shall select the appropriate methodology for the requested Services unless otherwise directed. In the event of any requested modification, Ellipse shall inform the Customer when the method requested by the Customer is considered to be inappropriate or out of date for the Services requested. Any modifications shall be agreed to prior to the commencement of the Services. Modifications requested by the Customer shall not impact the integrity of the Services or the validity of the results. Any modification, if mutually agreed, shall be set forth in an addendum to this Agreement, which shall include any change to estimated delivery dates and fees as agreed by the Parties. A request for additional services on a Sample that has entered the laboratory will be treated as a new order and may postpone delivery dates accordingly.

    4. Reporting. Ellipse shall provide a final report for each order including all information agreed to with the Customer for the Services.

      1. Unless Customer is a participant in a membership program that guarantees a specific delivery date or turnaround time, all delivery dates and turnaround times stated in any order are estimates and do not constitute a commitment by Ellipse. Nevertheless, Ellipse shall make commercially reasonable efforts to meet the estimated delivery dates and turnaround times as stated in each order.

      2. For participants in a membership program, if a delivery date or turnaround time is not met, Ellipse shall refund fifty percent (50%) of the invoice for the affected orders.

      3. Unless a different delivery method is specified in writing, analytical reports are sent by email, and are accessible via the client portal.

    5. Subcontractors. Ellipse may, at its sole discretion, subcontract the performance of certain Services, or portions of certain Services, to appropriately licensed and accredited subcontractors, provided that Ellipse shall remain responsible (i) to provide the Services at the cost or rate provided herein, and (ii) for the conduct of any subcontractor engaged for the performance of Services and the subcontractor’s compliance with this Agreement.

    6. Sample Disposal. Ellipse shall retain all Samples for a period of ninety (90) days from the date of Sample receipt, or thirty (30) days from the provision of results, whichever is greater. Ellipse has the right to dispose of or destroy the Samples after this period without further notice. If Customer requests the return of Samples, Ellipse will return them to Customer at Customer’s sole cost and risk.

 

SECTION II – CONTRACT TERMS

 

  1. Cancellation: A Party may cancel this Agreement at any time for any reason upon at least ninety (90) days prior written notice to the other Party. Either Party may cancel this Agreement upon the other Party's material breach of this Agreement, if such default continues for 30 days after written notice of the same (except in the case of Customer's failure to pay when due, in which case the cure period is five (5) days).

  2. Effect of Cancellation: Services cannot be cancelled or modified by Customer after testing is initiated. Upon termination, Customer shall pay to Ellipse within thirty (30) days from the effective date of termination any an all amounts due for Services performed and documented expenses incurred up to the effective date of termination.

  3. Payment Terms: A first-time Customer is required to pay the full amount of their first invoice in advance of Ellipse commencing any work on an order. For all subsequent orders, Customer agrees to pay the full amount of each invoice within thirty (30) business days of the provision of said invoice. Ellipse shall generate one invoice for each order placed.

    1. Outstanding Balances. Any invoice which remains outstanding after due date may be additionally charged with an administrative penalty of Eighty Dollars ($80) and may carry interest at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower.

    2. Failure to Pay for Services. Ellipse reserves the right to cancel Services at any time if Customer’s account is overdue by more than thirty (30) business days.

    3. Customer Tax Responsibility. The price for the Services does not include any local, state, federal, or foreign sales or use taxes, goods and services tax, value added tax, country-specific business or professional services tax or similar tax on international services or foreign entities providing services, consumption taxes, packaging or shipping charges. Customer shall assume and be solely responsible for any such applicable taxes.

 

 

SECTION III – ADDITIONAL TERMS

 

  1. Ownership. Customer shall be the sole and exclusive owner of all right, title, and interest in and to all data generated as a product of this Agreement. Customer shall grant to Ellipse a perpetual, limited, non-exclusive license to utilize any and all data generated from the testing performed pursuant to this Agreement for any internal usage, or as part of an aggregation of multiple test results for external usage. Customer may, at its sole discretion, authorize in writing, the disclosure of test results to a third-party upon any request by Ellipse.

  2. Confidential Information. During the term of this Agreement and after its termination or expiration, the Parties shall hold any Confidential Information (as defined below) in confidence, and shall not disclose the Confidential Information to third parties, nor use the Confidential Information for any purpose, other than as permitted in this Agreement and as required by law.

    1. Confidential Information. “Confidential Information” means any and all non-public, confidential, proprietary and/or trade secret information or materials that are disclosed by or on behalf of a Party or its affiliates (the “Disclosing Party”) to the other Party or its affiliates (the “Recipient”) under this Agreement. To qualify as Confidential Information, the information disclosed must clearly identified as confidential or proprietary, or would otherwise reasonably be considered to be confidential or proprietary to the Disclosing Party

    2. Compelled Disclosure. If disclosure by Recipient is required by order of a competent court or administrative agency, Recipient may comply with that order, provided it gives the Disclosing Party prior written notice sufficiently in advance to permit the Disclosing Party to seek an appropriate protective order and it cooperates with the Disclosing Party (at the Disclosing Party's expense) in seeking that order.

    3. Return of Confidential Information. Upon request from the Disclosing Party, the Recipient must promptly return to the Disclosing Party, or certify in writing that it has destroyed, all Confidential Information having come into Recipient's possession; provided, however, one copy of the Confidential Information may be retained by the legal department of Recipient to preserve a record of the same.

    4. No Obligation, No License. Nothing in this Agreement obligates either Party to disclose anything to the other Party. No right or license under any patent, patent application or know-how is granted to either Party or any other person by this Agreement or by any disclosure of Confidential Information hereunder, except for the right of the Recipient to use solely under the scope of this Agreement any Confidential Information disclosed to it.

  3. Warranties.

    1. Organization & Capacity. Each Party represents and warrants that (i) it is duly organized and validly existing under the laws of the jurisdiction of its formation and is qualified to do business and is in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification; (ii) it has the power and authority to perform its obligations under this Agreement; (iii) this Agreement has been duly and validly authorized, executed and delivered and is a legal, valid and binding agreement; and (iv) if at any time the foregoing representations and warranties (or any of them) are not true, it will promptly notify the other Party.

    2. Guarantee of Results. Analyses, interpretations, assessments, consulting work, and conclusions are prepared with a commercially reasonable degree of care, but Ellipse cannot guarantee that results will always be exact or relevant. Due to the inherent limitations of testing factors, Customer must independently verify the validity of any results, interpretations, assessments, and conclusions supplied by Ellipse if it wishes to rely on the same in respect of matters of importance, and shall do so at its own risk.

  4. Limitation of Liability. In no event shall Ellipse’s liability under this Agreement exceed the value of the Services to which such claim relates.

  5. Mutual Indemnification. Each Party shall indemnify and hold harmless the other Party from all liability arising from third-party claims for bodily injury, death, property damage or other costs and expenses (including attorneys' fees) resulting from the negligent or willful acts or omissions of the Party, or the Party’s officers, agents, employees, representatives, or assigns.

  6. General Provisions.

    1. Access to Books and Records. To the extent that the law and regulations are applicable to this Agreement, Customer and Ellipse agree to maintain a copy of this Agreement and all books, documents and records necessary to certify the nature and extent of compensation paid to Ellipse by Customer pursuant to this Agreement for four years or such time as may be required by statute and regulation and to perform all obligations specified for subcontracts and subcontractors under the Social Security Act, Section 1861(v)(1)(I), and the implementing regulations.

    2. Compliance with Laws. Each Party shall take adequate measures to comply with all applicable laws, regulations, rules, ordinances and orders regarding its activities related to this Agreement, except as otherwise specified in this Agreement.

    3. Disputes/Prevailing Parties. This Agreement is made pursuant to, and shall be governed by, the laws of the State of Colorado, which shall have personal and subject matter jurisdiction over Customer and with respect to any dispute that arises hereunder. In the event of any litigation relating in any way to this Agreement, the parties agree the prevailing Party in such litigation shall be entitled to recover all of its costs, expenses, and reasonably incurred attorney’s fees.

    4. Modification/Written Amendment/Authority. This Agreement may only be modified by subsequent written document signed by each Party specifically referencing this Agreement. Customer, and the individual signing this document on behalf of Customer, warrant and represent by their signatures below that they have full power and authority to enter into this Agreement and to commit Customer as set forth herein. Each of the parties acknowledge and represent that they have carefully reviewed this Agreement, and consulted with their own legal counsel with respect to the contents hereof.

    5. Assignment. Neither this Agreement nor the rights and obligations herein may be assigned by a Party to anyone without the written permission of the other Party, provided, however, that either Party, without the other Party's permission, may assign this Agreement to a third-party in conjunction with sale to the third-party of substantially all of the assets of the assigning Party associated with the scope and purpose of this Agreement.

    6. Drafting. Each Party has had an opportunity to participate in the drafting of this Agreement. Accordingly, each Party agrees that such Party shall not assert in any action or proceeding concerning the Agreement that the Agreement shall be construed against a particular Party as the drafter.

    7. Non-Exclusivity. Nothing in this Agreement is intended or shall be construed to create an exclusive relationship between the Parties. This Agreement shall not restrict either Party from providing or receiving similar or like services to or from others.

    8. Severability; Headings. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement.

    9. Non-solicitation. Ellipse and Customer mutually agree not to hire, directly or indirectly, any present or former employees of the other Party during the term and for a period of twelve months following the term of this Agreement without prior written consent from that Party.

    10. Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. Neither Party may take any actions which are binding on the other Party.

    11. Notice. Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified above or at such other address as the Party shall specify in writing. Unless otherwise specified, such notice shall be deemed given: upon personal delivery; if sent by fax, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, 3 days after the date of mailing. Acceptance or approvals required hereunder may be made by e-mail to an address to be designated by Ellipse. A facsimile of notices generated in good form by a fax machine (as well as a photocopy thereof) or electronic scan shall be treated as “original” documents admissible into evidence unless a document’s authenticity is genuinely placed into question. Each Party may change the address for the giving of notices and communications to it by written notice to the other Party in conformity with the foregoing. Nothing contained herein shall justify or excuse failure to give oral notice for the purpose of informing the other Party hereto when prompt notification is required, but it is understood that such oral notice shall in no way satisfy the requirement of a written notice.

    12. Entire Agreement; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersede any and all prior or contemporaneous oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Except as provided herein, this Agreement may be changed only by a writing signed by both parties. Waiver by either Party of a breach of any provision contained herein must be in writing, and no such waiver shall be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.

    13. Counterparts. This Agreement may be executed in one or more counterparts, each of which, when fully executed, shall be deemed an original, and all said counterparts taken together shall be deemed to constitute one instrument. Any counterpart may be delivered by any Party by transmission of signature pages to the other Party, and delivery shall be effective upon completion of such transmission. This Agreement may be executed and delivered via electronic transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another.

    14. Successors. This Agreement is binding on the parties and their respective successors and assigns.