Subject to change without prior notice

Published in USA, Feb 15, 2023

Version 1.0

Granite River Labs Inc.

General Terms and Conditions for Services

These General Terms and Conditions for Services (these “Terms”) govern services provided by Granite River Labs Inc. (“GRL”) by the person or entity identified as the purchaser or client (“Client”) in the proposal or quotation issued by GRL to which these Terms are attached (“Proposal”).

1. Entire Agreement. These Terms and the Proposal, together with any supplemental terms governing GRL’s provisions of services agreed to in writing and signed by both parties, embody the entire agreement of the parties concerning the subject matter hereof and supersede all previous communications, representations, or agreements, either verbal or written, between the parties. Any Statement of Work (“SOW”) or other terms, besides these Terms and the Proposal, that purport to supplement these Terms and govern the Services shall become effective and binding on the parties only if agreed to in writing and signed by both parties. Client’s acceptance of a Proposal—whether by countersigning such Proposal, issuing a purchase order referring to such quotation or proposal, acceptance by email, or your oral request for the Services described in the Proposal followed by our commencement of such Services—will be deemed acceptance of these Terms, and any acknowledgement or acceptance GRL issues is expressly conditioned on such acceptance. GRL specifically rejects all additional, inconsistent or conflicting terms, whether printed or otherwise set forth in or attached to any purchase order, service order, or other communication from the Client to GRL.
   
   
2. Services. GRL agrees to perform the services described in such Proposal (the “Services”) and provide the documentation, data, reports, designs, drawings, electronic files, or other tangible materials that are expressly identified as deliverables in such Proposal (collectively, “Deliverables”), and Client agrees to pay to GRL all fees and other amounts described in the Proposal. Payment terms are net seven (7) days from the date of invoice unless otherwise mutually agreed in writing. All overdue payments are subject to an interest charge of one and one-half percent (1-1/2%) per month. Client shall also be responsible for costs of collection, including payment of reasonable attorney fees if such expense is incurred. Quoted prices, unless stated, do not include any sales, use or other taxes. Notwithstanding anything to the contrary herein, GRL shall have no obligation to provide the Services or Deliverables if Client is in breach of any of its obligations hereunder.
   
   
3. Time and Location for Performance; Subcontractors. Unless specifically indicated in the Proposal or otherwise agreed to in writing by GRL, performance and delivery dates are estimates and are not guaranteed. GRL shall have no liability for rescheduled or late performance or delivery. Unless GRL specifies in the Proposal a specific location where the Services will be performed, GRL may perform Services at any laboratory in its networks. GRL retains the right, at its discretion, to use subcontractors for the performance of Services.
   
   
4. Client Obligations Related to Information. Client represents, warrants, and covenants that, to Client’s knowledge, all information and/or data provided by Client in connection with the Services is and will be complete, accurate, and not misleading.
   
   
5. Export Control Compliance. Client shall not: (a) cause GRL to violate any export, trade or other economic sanction law; (b) will promptly inform GRL if requested Services involve technology of Client that is subject to any government controls, including, without limitation, U.S. export controls, and will promptly supply all information needed to comply with those controls; and (c) will make payment to GRL for Services with funds obtained and through financial institutions and accounts in compliance with applicable laws concerning the prevention of money laundering, terrorist financing and other illicit activities, including, without limitation, those enforced by the United States.
   
   
6. Product Samples. If the Services require examination or testing of samples, Client will ship representative samples to GRL at Client’s expense. Prior to GRL’s acceptance of any product to be tested (or after any revocation of acceptance), the entire risk of loss of or damage to such product remains with Client. Products are accepted when receipt is acknowledged on chain of custody documentation. In no event will GRL have any responsibility or liability for the action or inaction of any carrier shipping or delivering any product to or from GRL’s premises. Client acknowledges that the shipping, preparation, examination, or testing of a sample may result in its damage or destruction, and Client agrees that GRL shall have no liability for any such damage or destruction. All shipment arrangements or overnight shipping requirements will be at Client’s expense. If the Client does not wish for their products to be returned, GRL may add storage and disposal fees to the final invoice. Client will be required to give to GRL written instructions concerning disposal of these products. GRL reserves the absolute right, exercisable at any time, to refuse to receive delivery of, refuse to accept, or revoke acceptance of any product which, in the sole judgment of GRL may be or become unsuitable for or may pose a risk in handling, transport or processing for any health, safety, environmental or other reason, whether or not such presence has been disclosed to GRL by Client.
   
   
7. Record Retention. GRL will retain records pertaining to the work performed for the Client for a period of three (3) years following the completion of the Services to which such records pertain, and all such records containing Confidential Information shall remain subject to the restrictions set forth in Section 8 below. Should Client desire that GRL maintain the records for more or less than three (3) years, the Client must obtain an agreement with GRL in writing. The Client, in accordance with GRL's fee schedule, will owe an additional record handling charge in effect at the time of the request.
   
   
8. Confidentiality.
   
   8.1    Definition. “Confidential Information” means any information about a party (the “Discloser”) or its products, technology, business, suppliers, or customers that the other party (“Recipient”) learns, receives, or otherwise acquires as a result of performing the Services, regardless of whether wholly or partially developed by Recipient, that Recipient knows or should reasonably know, due to the nature of the information or circumstances under which it was learned or disclosed, is deemed confidential by Discloser. Notwithstanding the foregoing, Confidential Information excludes information that: (a) is or becomes publicly available other than as a result of Recipient’s breach of this Section 8; (b) is lawfully disclosed to Recipient by a third party without any restrictions on further use or disclosure; (c) is already known to Recipient, as evidenced by Recipient’s written records, prior to Recipient’s receiving, acquiring, or learning such information in connection with the Services; or (d) is otherwise independently developed by Recipient without use of or reference to Confidential Information of the Discloser.
   
   8.2    Restrictions on Use and Disclosure. Recipient shall not use the Confidential Information for any purpose whatsoever other than the performance of the Services or disclose the Confidential Information to any person or entity except to a limited number of employees, contractors, and agents of Recipient who have a bona fide need to know such information in order to assist with performance of the Services and who have agreed in writing or are otherwise legally bound to restrictions on use and disclosure consistent with the requirements of this Section 8. Recipient also agrees to take reasonable precautions to prevent any unauthorized disclosure to or access to such Confidential Information.
   
   8.3    Disclosure Required by Law. This Section 8 will not prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that if Recipient is subpoenaed or otherwise compelled by valid law or a court order to disclose Confidential Information, prior to disclosure, to the extent legally permitted, Recipient shall first give prompt written notice to the Discloser sufficiently in advance to enable the Discloser to contest the subpoena or requested disclosure and/or seek a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; and provided further that the Recipient shall provide Discloser with reasonable assistance with any such action.
   
   8.4    Equitable Remedies. Each party acknowledges and agrees that any breach of any of the covenants set forth in this Section 8 by such party may cause irreparable harm and loss, and that money damages alone might not provide an adequate remedy in such event. Accordingly, the parties agree that, in addition to any other remedy a party may be entitled to, at law or in equity, each party will be entitled to seek injunctive or other equitable relief to restrain any breach or threatened breach of, or to otherwise specifically enforce, any of the covenants set forth in this Section 8.
   
   
9. Intellectual Property.
   
   9.1    Client Background IP. As between Client and GRL, Client is and shall remain the sole and exclusive owner of any and all Developments and associated IP Rights that Client develops or otherwise acquires prior to or independently from the Services, including without limitation any devices, software, or services that Client submits to GRL for testing (collectively, “Client IP”). “Developments” means inventions, discoveries, concepts, designs, processes, know-how, methods, information, data, specifications, algorithms, software, technology, documentation, drawings, and original works of authorship. “IP Rights” means copyrights and other rights associated with authorship, patent rights, trade secret rights, trademark and trade dress rights, and other intellectual property or industrial property rights recognized anywhere in the world, whether or not registered or registrable.
   
   9.2    GRL Background IP. As between the parties, GRL is and shall remain the sole and exclusive owner of the following (collectively, “GRL Background IP”): (a) any and all testing methods, testing equipment, testing software, know-how, or technology used by GRL to perform testing services for Client, together with all IP Rights associated therewith, but excluding any Client IP; and (b) any and all Developments and associated IP Rights developed or otherwise acquired by GRL prior to or otherwise independently from performance of the Services and without use of or reference to Client IP or Confidential Information. If GRL incorporates any GRL Background IP into the Deliverables, such GRL Background IP shall be subject to the Deliverables license set forth in Section 9.3 below.
   
   9.3    Test Results and Other Deliverables. With respect to any reports, data, documentation, or other tangible materials to be delivered to Client in connection with the Services, as described in the quotation or proposal to which these Terms are attached (“Deliverables”), unless the Proposal or SOW expressly provides otherwise, as between the parties and subject only to Client’s rights in any Client IP incorporated therein, GRL is and shall be the sole and exclusive owner of all IP Rights associated with such Deliverables. Contingent on Client’s payment in full of all amounts payable with respect to the applicable Services, GRL hereby grants to Customer a fully paid, worldwide, non-exclusive, perpetual worldwide right and license to use such Deliverables for their intended purposes as described in the applicable Proposal or SOW (e.g., provision of test reports to regulatory bodies as evidence of conformity to a specification or standard). Except as expressly permitted in the applicable Proposal or SOW, Client may not modify or create derivative works of test reports or other Deliverables or remove, alter, or obscure any proprietary notices included thereon or therein.
   
   
   
10. GRL Services Warranty and Disclaimer. GRL warrants that the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. GRL further warrants that, for a period of one hundred eighty (180) days from delivery of any Deliverables, such Deliverables shall substantially conform to the requirements and specifications set forth in the Proposal and SOW. In the event of any error, omission, professional negligence, or breach of the foregoing warranty, as Client’s sole and exclusive remedy and GRL’s entire liability, GRL shall re-perform the non-conforming Services or correct or replace the non-conforming Deliverables at its own expense, and GRL shall have no other liability whatsoever. All claims shall be deemed waived unless made in writing and received by GRL within thirty (30) days following completion of Services. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE AND ANY EXPRESS WARRANTIES CONTAINED IN A WRITTEN AGREEMENT SIGNED BY BOTH CLIENT AND GRL, NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, ARE MADE BY GRL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. GRL EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.
    
    
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS (INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE, LOST REVENUE, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, OR LOSS OF DATA OR BUSINESS INFORMATION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS LICENSORS, SUPPLIERS, AND DISTRIBUTORS (INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES, OR THE DELIVERABLES EXCEED: (A) WITH RESPECT TO GRL’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER SECTION
    12.1, THE GREATER OF ONE HUNDRED THOUSAND U.S. DOLLARS OR THE AMOUNTS PAID BY CLIENT FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM; AND (B) FOR ALL OTHER CLAIMS, THE AMOUNTS PAID OR PAYABLE BY CLIENT FOR THE GRL SERVICES THAT ARE THE SUBJECT OF THE CLAIM. Client acknowledges that the applicable fees and prices reflect this allocation of risk. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to Client. GRL shall have no liability, obligation or responsibility of any kind for losses, costs, expenses or other damages (including but not limited to any special, indirect, incidental or consequential damages) with respect to GRL’s services or results. All results provided by GRL are strictly for the use of its clients, and GRL is in no way responsible for the use of such results by clients or third parties. All results should be considered in their entirety, and GRL is not responsible for the separation, detachment, or other use of any portion of the results.
    
    
12. Indemnification.
    
    12.1    Indemnification by GRL. GRL hereby agrees to indemnify, defend and hold Client and its directors, officers, employees, and agents (collectively, “Client Indemnified Parties”) harmless from and against all damages, costs, liabilities and losses (including reasonable attorneys’ expenses) arising out of any third party claims, demands, or actions alleging that the Services or any resulting deliverables provided to Client infringe or misappropriate any third party’s patent, copyright, trade secret, or other intellectual property rights. Notwithstanding the foregoing, GRL shall have no liability or obligation to indemnify, defend, or hold the Client Indemnified Parties harmless with respect to any claim, demand, or action to the extent that it results from: (i) the combination, operation or use of the Services or Deliverables with or in equipment, products, or processes not provided by GRL; (ii) modifications to a Deliverable not made by GRL or GRL’s authorized contractor; (iii) conformance of the Services or Deliverables to specifications or requirements provided by Client; or (iv) Client’s failure to promptly use modified or replacement Deliverables provided in accordance with Section 13.
    
    12.2    Indemnification by Client. Client hereby agrees to indemnify, defend and hold GRL and its directors, officers, employees, and agents harmless from and against all damages, costs, liabilities and losses (including reasonable attorneys’ expenses) arising out of: (a) any misrepresentation made by Client in connection with obtaining the Services; (b) any violation by Client of any testing or certification rules or regulations promulgated by a third party standard setting organization or governmental authority; or (c) Client’s breach of Section 5 or other violation of applicable law.
    
    12.3    Conditions to Indemnification. The party to be indemnified (the “Indemnitee”) shall notify the party obligated ‎to indemnify it (the “Indemnitor”) in ‎writing of an indemnifiable claim promptly upon learning of or ‎receiving the same; and the Indemnitee shall ‎provide the Indemnitor with reasonable assistance ‎requested by the Indemnitor, at the Indemnitor’s expense, for the defense and settlement, if ‎applicable, of any ‎claim. The Indemnitee's failure to perform the foregoing obligations shall not relieve the Indemnitor of its obligations hereunder ‎except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced ‎as a result of such failure. ‎
    
    12.4    Control of Defense. After receipt of notice of a claim, the Indemnitor shall be entitled, ‎if it so elects, at its own cost, risk and expense: (i) to take control of the defense and ‎investigation of such lawsuit or action; and (ii) to employ and engage attorneys of its own ‎choice to handle and defend the same; provided, however, that the Indemnitee’s consent shall ‎be required for any settlement that does not include a full release of all claims. If the ‎Indemnitor fails to assume the defense of such claim within ten (10) business days after receipt ‎of notice of the claim, the Indemnitee will (upon delivering notice to such effect to the ‎Indemnitor) have the right to undertake, at the Indemnitor’s cost and expense, the defense, ‎compromise or settlement of such claim on behalf of and for the account and risk of the ‎Indemnitor; provided, however that such claim shall not be compromised or settled without the ‎written consent of the Indemnitor. The party that assumes control of the defense of the claim ‎will keep the other party reasonably informed of the progress of any such defense, compromise ‎or settlement. Notwithstanding the foregoing, the Indemnitee shall be entitled to conduct its ‎own defense at the cost and expense of the Indemnitor if the Indemnitee establishes that the ‎conduct of its defense by the Indemnitor would reasonably be likely to prejudice materially the ‎Indemnitee due to a conflict of interest between the Indemnitee and the Indemnitor; and ‎provided further that in any event, the Indemnitee may participate in such defense at its own ‎expense.‎
    
    
13. Infringement Remedy. If any Deliverables or Client’s use thereof are enjoined, threatened to be enjoined, or otherwise the subject of an infringement or misappropriation claim, GRL shall, at its option and sole cost and expense: (a) procure for Client the right to continue to use the Services or Deliverables; (b) modify or replace the Deliverables at issue or re-perform the Services to make them non-infringing and non-misappropriating while providing fully equivalent features and functionality; or (c) refund to Client all amounts paid by Client for the Services or Deliverables that are alleged to be infringing or misappropriating, in which case Client must immediately cease all use thereof and return such Deliverables to GRL.
    
    
14. Use of GRL Name and Logo. Client’s shall not use GRL’s name or trademark in any marketing or reporting materials, press releases or in any other manner (“Materials”) or attribution to GRL of any test result, tolerance or specification derived from GRL’s data (“Attribution”) without GRL’s prior written consent. To request GRL’s consent, Client shall provide copies of the proposed Materials or Attribution and describe in writing Client’s proposed use of such Materials or Attribution. GRL will have discretion to disapprove the use of its name or trademark in any Materials or Attribution.
    
    
15. Force Majeure. GRL shall have no responsibility or liability to the Client for any failure or delay in performance by GRL, which results in whole or in part from any cause or circumstance beyond the reasonable control of GRL. Such causes and circumstances shall include, but shall not be limited to, acts of God, acts of Client, acts or orders of any government authority, strikes or other labor disputes, natural disasters, accidents, wars, civil disturbances, difficulties or delays in transportation, mail or delivery services, inability to obtain sufficient services or supplies from GRL’s usual suppliers, or any other cause beyond GRL’s reasonable control.
    
    
16. General. The invalidity or unenforceability of any provision of these Terms in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining provisions or the validity or enforceability of such provision in any other situation or in any other jurisdiction. No waiver by GRL of any provision, term or condition hereof or of any breach by or obligation of the Client hereunder shall constitute a waiver of such provision, term or condition on any other occasion or a waiver of any other breach by or obligation of the Client. These Terms shall be administered and interpreted under the laws of the State of Delaware, United States, exclusive of any provisions of the United Nations Convention on the International Sale of Goods, and without regard to principles of conflicts of law; and any dispute, action, or proceeding arising under or related to these Terms shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. Any such arbitration shall take place in Santa Clara, California, unless a different location is mutually agreed to by the parties, and shall be conducted in the English language.