Terms & Conditions
These Terms & Conditions and the Proposal (Scope of Work) concurrently executed between Avomeen LLC (Avomeen) and Client shall collectively set forth all terms and conditions of the resulting Projects (Engagements) from such engagement (such collective terms, the “Contract”). Any conflicts between these Terms & Conditions and the Scope of Work shall be governed by the Scope of Work.
Scope of Work & Change Orders
Any request for additional services or modification to the Scope of Work or deliverable(s) under the Engagement will be assessed as a scope change, and if appropriate, documented with an Amendment to this Contract (Change Order), including:
- Any change in test descriptions or process parameters provided by Client;
- Significant changes to specifications and/or criteria which may result in the need to have Avomeen repeat previously completed work;
- Significant changes to the scope or deliverable of an Engagement;
- Complexity of the Engagement.
Client may not alter or modify the Scope of Work or any part thereof without the prior, written consent of Avomeen. Avomeen reserves the right to change the price, terms of payment, and delivery dates for any deliverables affected by any alterations or modification to which it consents. Scope changes may delay the estimated delivery date or result in the adjustment of Engagement costs accordingly. Avomeen will first discuss with Client prior to modifying due dates or processing additional charges associated with the scope change. Prior to the initiation of an additional or modified Scope of Work, Avomeen must receive and approve of any additional necessary materials identified within the Change Order.
The Client is responsible for providing the necessary materials identified within this Contract prior to Avomeen’s initiation of any Engagement, and Avomeen will schedule the accepted Scope of Work only upon receipt of all necessary materials detailed within this Contract. Any timelines or schedule information previously communicated cannot be secured until Avomeen receives stated materials. Notwithstanding the foregoing, specific turnaround-time guarantees may be stipulated by Avomeen for specific services at Avomeen’s and Client’s discretion. In the event that Client selects a rush timeframe for services, Avomeen will endeavor to schedule the services per the client’s preferred rush timeframe on a best-efforts basis.
Circumstances beyond our control, including but not limited to, the uncertainty of the delivery of samples, availability of critical reagents and/or raw materials, and other unforeseeable events, may affect our ability to meet estimated timelines, including desired rush timelines. If such an event occurs, Avomeen will inform Client and the timeline will be revised. In the event that a rush timeline is revised, project costs will be adjusted accordingly, if applicable. Avomeen shall make commercially reasonable efforts to meet the agreed upon project deadlines.
Avomeen may pause the project timelines, deadlines, and resource allocations if the time that the Client is evaluating Work Product exceeds what was mutually agreed. Due to the collaborative nature of the work performed at Avomeen, timeframes may need to be extended to allow both parties the appropriate time to evaluate Work Product. In the event that timeframes need to be extended or modified, Avomeen will discuss with the Client and agree upon a revised Milestone/Deliverable and/or cost and payment schedule.
Project Conduct & Reporting
All Engagements will be completed in Avomeen’s laboratories unless otherwise specified. Avomeen represents that the Services and resulting Work Product shall be performed for Client within the limits mutually agreed to, and in a manner consistent with the level of care and skill ordinarily exercised by providers of similar services under similar circumstances. Avomeen reserves the right to subcontract services to other laboratories; if subcontracting is necessary, samples will be sent to laboratories meeting Avomeen’s qualification requirements and consistent with Avomeen’s standard agreement terms for confidentiality of intellectual property.
To ensure transparency and collaboration, Avomeen will engage in periodic reporting, which may include unsuccessful attempts and/or Work Product which may not yet fully meet agreed upon final criteria and/or specifications. Upon Client’s written request, or if so stated in the Scope of Work, Avomeen may provide “Draft” Work Product to Client, containing a “Draft” watermark. Avomeen reserves the right to invoice Client and/or consider Milestones/Deliverables met for services rendered upon issuance of such “Draft” Work Product. The definition of Work Product shall not extend to processes developed during the course of Engagement, unless otherwise stated within this Contract, as Avomeen shall retain rights to all processes developed during the course of the Engagement unless otherwise provided.
Work Product is prepared for and supplied for use by Client. Work Product is not to be publicly disclosed or exploited without the prior written consent of Avomeen. Client must raise any objections to Work Product within 15 days after Client receives Work Product. If Work Product is proven to warrant repeat analysis, such analysis and terms must be agreed to in writing by both Parties. Costs incurred for the repeated analysis, if any, will be documented in an Amendment to this Contract before conducting work. Furthermore, a repeat analysis will only be possible if Avomeen has a sufficient amount of the original sample on-hand when it receives notice from the Client. Otherwise Client shall be responsible for the procurement and transportation of additional sample to Avomeen as a condition for repeat analysis.
All required investigational work (such as Out-of-Specification (OOS) investigations, trouble shooting chromatographic methods, etc.) may be conducted without prior approval from Client, for up to 8 scientist hours per occurrence. If the additional work exceeds 8 hours, Client will be contacted prior to continuation. All investigational re-testing performed that is not directly due to Avomeen error will be invoiced to Client. All raw data requested by Client shall be compiled and provided to Client by Avomeen for an additional charge as determined by Avomeen.
Suspension & Termination
Client may suspend work for Engagements which extend for 60 consecutive days or more at any time at Client’s discretion with reasonable written notice to Avomeen, provided however, such suspension may not exceed 2 months. If Client has not re-engaged Avomeen to resume work within such 2-month period, this Contract shall be closed, and assuming account is made current and any outstanding payments are made, any re-engagement shall be performed under a revised Contract.
The work performed by Avomeen often involves innovation, research, and development, and therefore either Party must inform the other of termination via writing. Client must provide Avomeen a 15-day notice period to stop work, and upon notification, Avomeen will summarize work performed up to the time of the notice, to be provided to Client at the completion of the notice period, provided that Client’s account is paid in full (zero balance) at the time of suspension for work performed up to the end of the 15-day period.
In the event an Engagement is cancelled prior to 50% completion, Client will be charged for all costs incurred up to the time of cancellation which includes time (billed at a rate of $425 per hour) and materials plus 10% of the original total Engagement cost. If the project is more than 50% complete at the time of cancellation, Client will be invoiced for the total Engagement cost. None of the Intellectual Property (“IP”) developed during the course of the Engagement will be Client’s property until a fee settlement has been mutually agreed.
Any and all IP developed under this Contract is considered work made-for-hire and as such, IP will transfer to the Client only upon all Client obligations being met, including full payment of all outstanding invoices. Except for any provision of this Contract explicitly to the contrary, any routines, methodologies, processes, libraries, tools or technologies created, adapted or used by Avomeen in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of Avomeen, and Client shall have no ownership interest in or claim to the Development Tools, except as necessary to exercise its rights in the Work Product. In addition, notwithstanding any provision of this Contract to the contrary, Avomeen shall be free to use any ideas, concepts, or know-how developed or acquired by Avomeen during the performance of the Engagement to the extent obtained and retained by Avomeen’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights described above, nothing in this document shall be construed to preclude Avomeen from using the Development Tools for use with third parties for the benefit of Avomeen.
Prices and related Contracts are based on Engagement and Scope of Work descriptions provided to Avomeen by Client and detailed in such Contract. In the event of a conflict between oral and written quotes, the written Contract shall control.
Payment schedules shall be as set forth in the relevant Scope of Work incorporated herein. Avomeen may require payment of up to 100% of the quoted price as a condition of acceptance. Work will be invoiced according to the payment schedule, usually upon receipt of deliverables or monthly based on progress against a delivery schedule. A finance charge of 1.5 percent per month will be imposed on any balance more than 30 days past due. If Client payment is delinquent for a period greater than 30 days, Avomeen reserves the right to suspend work until Client pays all past due amounts (including interest, costs and fees), and the fees for the next scheduled phase, project, service, or similar, must further be pre-paid in full before work shall commence. Payment of Avomeen’s invoices by Client shall not be delayed by, or contingent upon, approval or payment by Client’s customer or any other third party. Furthermore, the challenge of an analytical result will not entitle Client to defer payment.
Accepted forms of payment include credit card, wire transfer, and check. Please note a 3% processing fee applies to all US credit card payments. International credit card payments incur a 5% processing fee. Wire transfer and credit card are the accepted forms of payment for all international clients. Avomeen may adjust such fees and methods of payment at any time and in their sole discretion upon notice to Client.
Upon full payment to Avomeen for all services provided under this Contract, Work Product generated by Avomeen for Client shall become Client’s property, provided however, that any intellectual property owned by Avomeen prior to this Agreement and incorporated into the Work Product shall be retained by Avomeen and Avomeen shall grant Client a license to use such Avomeen IP for the limited purpose of use of the Work Product.
The estimated Engagement cost detailed in this Contract assumes up to 5% of the Engagement cost will be allocated to the procurement of required materials. In the event that material costs exceed 5% of the total Engagement value, Avomeen reserves the right to pass-through such cost overages plus 10% to Client and Avomeen will advise the Client when reasonably possible if additional costs are expected. Client is responsible for expenses associated with shipping of prototype formulations and additional materials to locations outside of the United States. Costs incurred while shipping hazardous materials to Client will be passed through to Client at cost plus 10%.
No Warranty; Limits of Liability
Client acknowledges that Avomeen accepts no liability for the use of Work Product provided by Avomeen to Client. Client agrees to indemnify and hold Avomeen harmless in all matters regarding Avomeen’s rendered Services and resulting Work Product. Client agrees that if Avomeen should be found liable for any losses or damages attributable to the Services in any respect, Avomeen’s liability shall in no event exceed the amount of the fee paid by Client for such Services and Client’s sole remedy at law or in equity shall be the right to recover up to such amount. Client acknowledges and agrees that in no event will Avomeen be liable for consequential or incidental damages or expenses, including, but not limited to, loss of profits, interest, or business interruption. Avomeen strongly recommends the review of trademark and patent positions prior to the use of Work Product in commercial production.
AVOMEEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY WORK PRODUCT DELIVERED PURSUANT TO THIS CONTRACT, NOR DOES AVOMEEN MAKE ANY REPRESENTATION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. AVOMEEN ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION OF ANY PRODUCTS PROVIDED TO AVOMEEN BY OR ON BEHALF OF CLIENT. NO REPRESENTATIVE OF AVOMEEN IS AUTHORIZED TO GIVE OR MAKE ANY OTHER REPRESENTATION OR WARRANTY.
Occasionally the desired Work Product or test outcome may not be technically feasible, and therefore the desired outcome is not guaranteed. Prototype formulations and batches produced by Avomeen are for R&D purposes only and are not intended for human use, unless otherwise expressly labeled.
During the term of the Engagement detailed within this Contract and for a period of two (2) years after the completion or termination of the Engagement for any reason, Client agrees that it shall not induce or attempt to hire any Avomeen employee in any business or capacity. Notwithstanding the foregoing, if Client proceeds to hire any Avomeen employee, Avomeen will assess a penalty above any prevailing professional recruitment rate.