TERMS AND CONDITIONS FOR PURCHASE AND USE

1. Definitions

   “Element Certified“ shall mean this Web site, the information provided regarding the testing and analytical services that may be purchased through this Web site, and the directions set forth for completing a purchase of the services.

   “You“ or “Your“ refers to the user of Element Certified and any individual who makes a purchase for testing and analytical services through this Website.

   ”Lab“ refers to the Element Materials Technology Laboratory performing the testing and analytical services You order through Element Certified.

2. Formation of Contract

   1. These terms and conditions (the “T&Cs“) together with any documentation provided to You through Element Certified and/or from the Lab for the services You purchase shall constitute the Contract between you and the Lab for the use of Element Certified, your purchase of services, and the performance of the services. These T&Cs shall supersede and override any terms or conditions contained in or referred to in any other document, including any document or writing You send to the Lab.

   2. Any phrase introduced by the terms “including“, “include“, “in particular“ or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

   3. Your order through Element Certified constitutes an offer to purchase the services You specified in such order upon these T&Cs. This offer placed by You will be deemed accepted on the date the Lab mails to You the supplies that must be used to submit a specimen for testing and analysis. When Your offer to purchase is accepted by the Lab the contract for the purchase of those services on these T&Cs will be established (such contract, together with these T&Cs, the “Contract“).

   4. The Lab shall provide the supplies You are to use to collect and submit a specimen, which must be completed by You within the six (6) months following the month in which You received the supplies. For avoidance of doubt, the Lab will not test specimens that are received more than six (6) months after the supplies were delivered to You.

3. Variations, including Modification, Postponement, Amendment, and Cancellation

   1. These T&Cs may not be varied by You and shall not be waived by the Lab except by written authorization, with details of the applicable waiver, and signed by an authorized officer of the Lab.

   2. Once You submit an order through Element Certified, the order cannot be modified, postponed, amended or canceled in any respect.

   3. The Lab reserves the right to reject an order that is not submitted with the required information or for which payment has not been made.

4. Prices & Payment

   1. You shall pay the Lab the fees and charges set out in Your order for the provision of the services (“Consideration“) at the time You submit the order.

   2. You shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, national, state, province, or local governmental entity on any amounts payable by You. Any such taxes shall be in addition to the amount of the Consideration. In the event that You are required by law to make such payment of the Consideration subject to the deduction of withholding tax, the sum paid by You shall be increased to the extent necessary to ensure that after such deduction or withholding the Lab receives an amount equal to Consideration it would have received had no such deduction or withholding been required.

   3. You shall pay the Consideration to the Lab through the program linked to the Element Certified Web site in the currency specified in the order form You submitted.

5. Services

   1. Subject to the remaining sub-conditions of this condition 5, the Lab warrants that it will complete the Services in a satisfactory and workmanlike manner, consistent with industry standards. You expressly acknowledge and agree that the Lab gives no warranty that any result or objective can be achieved through the services.

   2. The Lab will use commercially reasonable efforts to complete the services and provide to You electronically information, test results, and analysis in respect of the Services (the “Report”) within twenty-one (21) days of the receipt of the specimen from You, but the Lab shall not be liable to You for: (i) any delay in the performance of any obligation under the Contract; or (ii) damages suffered by You by reason of such delay.

   3. The Lab’s obligation to complete Services under the Contract shall be subject to any obligation it may have to comply with any law or other regulation binding on it which may be in force from time to time.

   4. No employee, agent or other person is authorised to give any warranty or make any representation on behalf of the Lab in relation to the Contract, or to assume for the Lab any other liability in connection with the services, unless such warranty, representation or assumption of liability is given to You in accordance with sub-condition 2.1.

   5. You represent and warrant to the Lab the completeness and accuracy of all documents and information supplied to the Lab for the purposes of the Lab fulfilling the services, both at the time of supply and subsequently.

   6. Reports are issued on the basis of information known to the Lab at the time that the services are carried out. Although the Lab will use all reasonable endeavours to ensure accuracy, the services depend, inter alia, on the effective co-operation of You, and on the information submitted to the Lab. All Reports are prepared on the basis that:

      1. here is no responsibility to any person or body other than You;

      2. they are not produced for any particular purpose and no statement is to be deemed, in any circumstances to be or give rise to a representation, undertaking, warranty or contractual condition unless specifically stated;

      3. the Report is determined solely by the professional analysis undertaken by the Lab’s staff in accordance with each individual Contract;

      4. the Lab is entitled to be paid the Consideration irrespective of the results or conclusions reached in the Report;

      5. the results of the services shall address the items and information submitted only and are not to be regarded as representative of any larger population from which the specimen was taken; and

      6. he results are final and approved by the Lab.

   7. Lab shall not be liable for a breach of the warranty set forth in condition 5.1 above or otherwise for a breach of its obligations under this condition 5 unless You give written notice of the claimed defect in services, reasonably described, to the Lab within the time period set forth in condition 8.4.1 below. Subject to the foregoing, unless the Lab disputes the validity of any such claim of defect, the Lab shall, in its sole discretion, either: (i) repair or re-perform such services (or the defective part); or (ii) credit or refund the price of such services at the pro rata Contract rate. THE REMEDIES SET FORTH IN THIS CONDITION 5.7 SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AND THE LAB’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN CONDITION 5.1 OR BREACH OF ANY OTHER OBLIGATION UNDER THE CONTRACT

6. Disposal of the Sample

   The Lab reserves the right to properly dispose of the specimen You submit after completion of the services. The length of time Your specimen is kept after completion of the services before being destroyed will be at the absolute discretion of the Lab.

7. Risk of Specimen Loss

   All risk of loss or damage to the specimen You submit (except for loss or damage caused by the Lab and for which and to the extent that the Lab accepts liability under these T&Cs) shall remain with You at all times.

8. Liability and Indemnity

   1. This condition 8 sets out the entire financial liability of the Lab, its employees, agents and sub-contractors to You in respect of any breach of the Contract, any use made of the specimen or any part of it on which services are carried out, and any representation, warranty, statement, or tortious act or omission (including negligence or breach of statutory duty) arising under or in connection with the Contract.

   2. Other than as expressly set out herein and as specifically warranted in writing to You by an officer or duly authorized signatory of the Lab in accordance with sub-condition 2.1, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, expressly disclaimed and excluded from the Contract.

   3. SUBJECT TO THE REMAINING SUB-CONDITIONS OF THIS CONDITION 8, THE LAB SHALL NOT BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, OR OTHERWISE FOR:

      1. LOSS OF PROFITS; LOSS OF BUSINESS; LOSS OF REVENUE; LOSS OF MARKETS; LOSS OR DAMAGE INCURRED AS A RESULT OF A THIRD PARTY CLAIM; DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES; LOSS OF ANTICIPATED SAVINGS; LOSS OF GOODS; LOSS OF CONTRACT; LOSS OF USE; LOSS OR CORRUPTION OF DATA OR INFORMATION; EX GRATIA PAYMENTS; OR

      2. ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES, FINES, PENALTIES, OR EXPENSES; OR PURE ECONOMIC LOSS.

      THIS CONDITION 8.3 SHALL APPLY REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE

   4. SUBJECT TO CONDITIONS 8.3 AND 8.7, THE LAB’S TOTAL LIABILITY TO YOU IN CONTRACT, TORT (INCLUDING CLAIMS FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY) MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE CONTRACT SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE LESSER OF (i) US$1,000 OR (ii) THE CONSIDERATION PAID FOR THE SERVICES UNDER THE CONTRACT THAT ARE SUBJECT TO THE CLAIM. UNDER NO CIRCUMSTANCE SHALL LAB’S LIABILITY EVER EXCEED ITS PROPORTIONATE SHARE WHERE MORE THAN ONE PARTY HAS LIABILITY. Save in the case of fraud or fraudulent concealment by the Lab, the Lab shall be under no liability in respect of any claim under the Contract and any such claim shall be wholly barred and unenforceable unless:

      1. You notify the Lab in detail and in writing of the alleged basis for the claim within two (2) months of You becoming aware thereof and within six (6) months after the completion of the services to which the claim relates; and

      2. the Lab is permitted to inspect any and all property with respect to which the services are claimed to have been defective or to which Your claim otherwise relates.

   5. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SUB-CONDITION 5.1 ABOVE, THE LAB MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY: (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

   6. You acknowledge that the above provisions of this condition 8 are reasonable and reflected in the price which would be higher without those provisions and You will accept such risk and/or insure accordingly.

   7. You agree to indemnify, keep indemnified and hold harmless the Lab from and against all losses which the Lab may suffer or incur arising out of or as a result of:

      1. breach of any law by You in connection with the performance of the services;

      2. any claim threatened or made against the Lab by any third party arising out of the services or out of any delay in performing or failure to perform the services (even if such claim is solely or partly attributable to the fault or negligence of the Lab) to the extent such claim is in excess of the Consideration paid for the services under the Contract that are subject to the claim; or

      3. any claims arising as a result of any misuse or unauthorized use of any Reports issued by the Lab or any Intellectual Property Rights belonging to the Lab (including trademarks) pursuant to this Contract.

      Notwithstanding any other provision of these T&Cs, Your liability under this indemnity shall be unlimited.

   8. Nothing in these T&Cs limits or excludes the liability of the Lab for:

      1. death or personal injury to the extent resulting from the Lab’s acts or omissions in providing the services; or

      2. liability incurred by You to the extent resulting from fraud or fraudulent misrepresentation by the Lab; or

      3. any other matter which may not be limited or excluded by law to the extent arising out of the acts or omissions of Lab.

   9. This condition 8 shall survive termination of the Contract.

9. Intellectual Property Rights

   1. In this condition 9, the following definitions apply:

      Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights (now existing or hereafter created), in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

   2. All Intellectual Property Rights (including copyright in records, scientific documentary, primary data or electronic means of handling data) produced during any service shall belong to and remain the property of the Lab unless otherwise expressly agreed as part of the Contract.

   3. Ownership and copyright in the Report shall remain with the Lab. Upon You discharging all Your obligations under the Contract, including payment of the Consideration, You will obtain an irrevocable, royalty-free, non-exclusive license to use the Report (including the right to sub-license), subject to the terms of this condition 9.

   4. All Intellectual Property Rights in all service mark(s), trademark(s), certification mark(s) and other names and logos owned by the Lab shall remain the property of the Lab and cannot be sold or licensed by You.

   5. If there is a certification of the services by the Lab, You will receive a license to use the Lab’s certification mark(s) and logos for the certification validity period, subject to the applicable terms of use (as amended from time to time) which are issued with every certification and are available on request.

   6. You shall indemnify the Lab against all losses to which the Lab may become liable as a result of a claim that the use of any data or the specimen supplied by You for the performance of the services involves the infringement of any Intellectual Property Rights of any third party.

   7. Except for Your limited rights to use a Report set forth in condition 10, this Contract does not grant and shall not be construed as granting, any rights to any name or mark of the Lab. Neither party is granted any right to the other party’s name in connection with any publication and may not give any press release or make any other public announcement regarding this Contract, the services or any transaction between the parties without the express prior written consent of the other party.

10. Use of Reports

    1. The Reports constitute confidential information that is to be protected and shall be used solely to:

       1. assist You in completing Your requirements and the Lab in performing services for You;

       2. present or respond on a claim in a court of law (provided that, where this is the purpose for which the Report is order this has been agreed with the Lab in advance of the Report being ordered); or

       3. present or respond as required by law or any regulatory body.

    2. You hereby undertake that You shall not:

       1. replicate or present a Report except in full as delivered by the Lab without the prior written consent of the Lab; or

       2. use a Report, or any portion thereof, in any manner that might reflect unfavorably upon the Lab or its group, or which might be, or might include statements, interpretations or comments that could be, misleading or false.

11. Court and Other Proceedings

    1. In the event that You requires the Lab to present the results or findings of services carried out by the Lab in witness statements, court hearings or other legal proceedings, You shall pay to the Lab such costs and fees for such presentations and the preparation thereof as the Lab may charge to customers generally from time to time for such services and You shall be liable for such costs in addition to the Consideration.

    2. In the event that the Lab is required by a party other than You to present the results or findings of services carried out by the Lab for You in any legal proceedings relating to You, You shall pay all costs and fees arising from any services which the Lab is required to do as a result, including the preparation of any witness statement and the preparation for and appearance at any court hearing and reasonable travel and out-of-pocket expenses. You shall pay all such costs, whether or not You have paid all Consideration under the Contract and whether or not the Lab has closed Your file in respect of the matter.

    3. If any aspect or element of the services (including any specimen) is, or is likely to be, the subject of or relevant to legal proceedings, this fact must be provided to the Lab in writing before the Services are carried out. If that fact is not disclosed to the Lab at that stage, the Lab may not, in its absolute discretion, be prepared to provide testimony and/or documentation, or serve as the expert witness on behalf of You.

    4. This condition 11 shall survive termination of the Contract.

12. Termination

    For the purposes of this condition 12, “Sanctions Rules” shall mean any applicable trade or economic sanctions, export control, embargo or similar laws, regulations, rules, measures, restrictions, restricted or designated party lists, licenses, orders, or requirements, in force from time to time, including without limit those of the United States, the European Union, the United Kingdom, and the United Nations.

    1. If You becomes subject to any of the events listed in this sub-condition 12.1, the Lab may terminate the Contract with immediate effect by giving written notice to You:

       1. You commit a breach of any terms of the Contract or any other contract with the Lab which is incapable of remedy or, if capable of remedy, has not been remedied by You in accordance with a written notice from the Lab requiring remedy within the period specified in said notice;

       2. if the Lab reasonably believes that providing the services or dealing with You would be in breach of Sanctions Rules, You fail to satisfy due diligence requests made by the Lab in connection with compliance with Sanctions Rules or other relevant laws or regulations or You do anything which is in breach of, or would cause the Lab to be in breach of, Sanctions Rules.

    2. On termination of the Contract for any reason, the Lab shall have no further obligations of any kind to You.

    3. Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

    4. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.

13. Force Majeure

    The parties shall not be liable to perform any obligation under the Contract if inability to perform is caused directly or indirectly by any act of God, flood, war, riot, accident, terrorism, explosion, strike or labor dispute, pandemic, compliance with any law, delay or default by subcontractor or supplier of materials or services, the existence of any circumstance making performance commercially impracticable or any other cause beyond the party’s reasonable control, provided that this condition 13 shall not apply to any obligation to make any payments due to the Lab under the Contract. Without limiting the foregoing, if the Lab’s performance of its obligations under these T&Cs is prevented or delayed by any act or omission of You or its agents, subcontractors, consultants or employees, the Lab shall not be deemed in breach of its obligations under these T&Cs or otherwise liable for any costs, charges or losses sustained or incurred by You, in each case, to the extent arising directly or indirectly from such prevention or delay.

14. Waiver of Compliance

    Waiver by either party hereto of a breach by the other party of any of the provisions of these T&Cs shall not be deemed a waiver of future compliance therewith, and such provisions shall remain in full force and effect.

15. Entire Agreement

    1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

    2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

16. Severability

    If any provision or remedy provided in these T&Cs is found invalid or unenforceable or unlawful under any applicable law in whole or in part, it shall be either deemed to be amended in so far as it is possible to do so in order to make it enforceable while retaining its purpose, or severed from the Contract if it is not possible to do so, and the remaining provisions of these T&Cs, including any remaining default remedies, shall be given effect in accordance with the intent hereof. In the Lab’s sole discretion, it may terminate the Contract by not less than seven (7) days’ written notice to You in the event that it considers that such deletion will have a materially adverse effect on its rights under the Contract.

17. No Partnership or Agency

    1. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, make any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party.

    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person or entity.

18. Third Parties

    A person who is not a party to the Contract shall not have any rights under the Contract to enforce any term or condition of the Contract. The Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Contract.

19. Data Protection

    For the purposes of this condition 19, “Data Protection Laws” shall mean  (a) up to and including 24 May 2018 the Directive 95/46/EC as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, and (b) on and from 25 May 2018 the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and/or (c) any federal, national, state, province, local, international or other applicable laws, rules or regulations governing the use and protection of data.

    1. Within this condition 19, “Process/Processing/Processed”, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Personal Data Breach” shall have the same meaning as in the Data Protection Laws; provided that the US Data Protection Laws shall be controlling should there be a conflict between any Data Protection Laws and thereafter the GDPR shall have priority.

    2. You agree not to provide or otherwise make available Personal Data to the Lab, unless otherwise required for the provision of the Services, in which case such additional Personal Data shall be Your’s only and specifically identified in advance by You and agreed to in writing by the Lab.

    3. Where Personal Data is Processed by a party under or in connection with the Contract that party, as Data Processor, shall:

       1. not Process, transfer, modify, amend or alter the Personal Data or disclose or permit the disclosure of the Personal Data to any third party other than as required to meet the other party’s (as Data Controller) lawful, documented and reasonable instructions (which shall unless otherwise agreed be to process Personal Data as necessary to provide the Services pursuant to the terms of this Contract), unless required by a law to which the Data Processor is subject, provided that in such a case, the Data Processor shall inform the Data Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. In particular, the Data Controller instructs the Data Processor to transfer data outside the EEA subject to the Data Processor complying with the requirements of Articles 45 to 49 of the GDPR;

       2. upon becoming aware of a Personal Data Breach:

          1. notify the Data Controller without undue delay; and

          2. provide reasonable co-operation (at the cost of the Data Controller) to the Data Controller in connection with the Personal Data Breach;

       3. upon receiving any request, complaint or communication relating to the Data Controller’s obligations under the Data Protection Laws:

          1. notify the Data Controller as soon as reasonably practicable;

          2. assist the Data Controller by implementing appropriate technical and organizational measures to enable the Data Controller to comply with any exercise of rights by a Data Subject under any Data Protection Laws in respect of Personal Data processed by the Data Processor under this Contract or comply with any assessment, enquiry, notice, or investigation under any Data Protection Laws, provided in each case that the Data Controller shall reimburse the Data Processor in full for all costs reasonably incurred by the Data Processor performing its obligations under this sub-condition 19.3.3;

       4. ensure that at all times it has in place appropriate technical and organizational measures as required by Article 32 of the GDPR and any other applicable Data Protection Laws;

       5. ensure that its employees who may have access to the Personal Data are subject to appropriate confidentiality obligations;

       6. implement appropriate organization and technical measures to assist the Data Controller in meeting its obligations in relation to Articles 33 to 36 of the GDPR and any other applicable Data Protection Laws taking into account the nature of processing and the information available to the Data Processor;

       7. not authorize any sub-contractor to process the Personal Data (“sub-processor”) other than with the prior written consent of the Data Controller, it being acknowledged that the Data Controller consents to the appointment of sub-processors who may from time to time be engaged by the Data Processor who in each case are subject to terms between the Data Processor and the sub-processor which are no less protective than those set out in this condition 19, provided that the Data Processor notifies the Data Controller of the identity of such sub-processors and any change to them; and

       8. cease Processing the Personal Data within ninety (90) days upon the termination or expiration of this Contract or, if sooner, the service to which it relates and as soon as possible thereafter (at the Data Controller’s option), either return, or securely wipe from its systems, the Personal Data and any copies of it or of the information it contains, other than to the extent that the Data Processor is required to retain the Personal Data due to a legal or regulatory requirement, or by a requirement of an accreditation body.

    4. The Data Processor shall make available to the Data Controller such further information and (as applicable) allow for and contribute to any audit or review exercise, conducted by the Data Controller or an auditor mandated by the Data Controller to provide assurance that the Data Processor is in compliance with the obligations set out in this condition 19, provided always that this requirement shall not oblige the Data Processor to provide or permit access to information concerning: (i) the Data Processor’s internal pricing information; (ii) information relating to other clients of the Data Processor; (iii) any Data Processor non-public external reports; or (iv) any internal reports prepared by the Data Processor’s internal audit or compliance functions. The Data Processor must immediately inform the Data Controller if, in its opinion, an instruction provided by the Data Controller pursuant to this Contract infringes the GDPR or any other applicable Data Protection Laws.

20. Sub-contracting

    1. Unless otherwise restricted by the terms of the Contract and/or obligations under any accreditation or governing approval, the Lab shall be entitled, in its absolute discretion, to sub-contract the whole of or any part of the service.

    2. The Lab may assign, delegate, license or hold on trust, all or any part of its rights or obligations under the Contract.

    3. The Contract is personal to You which may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Lab’s prior written consent.

21. Export Control License

    For the purposes of this condition 21, “Export Control License” shall mean any public or governmental license, approval, permit or similar (whether temporary or permanent), issued directly or indirectly, by any United States or foreign authority which, from time to time, it is necessary to obtain in order to be entitled to market, import, export, or re-export products and/or provision of services, and/or transfer of technology and/or Intellectual Property Rights including without limitation, the U.S. Export Administration Regulations, and the U.S. International Traffic in Arms Regulations.

    1. Should the Lab’s performance of its obligations under this Contract, wholly or partly, be subject to Export Control Licenses, requires signed end user certificates, or any other United States or foreign governmental or court approvals or consents, the parties agree to assist each other in completing the relevant end user certificates or other such approvals or consents and the Lab undertakes to conform to and apply the terms of such, end user certificates, Export Control Licenses or restrictions.

    2. You represent and warrant that You shall inform the Lab in writing, prior to the Lab carrying out any service, of any applicable import or export restrictions that may apply to the services to be provided, including any instances where any products, information or technology may be exported/imported to or from a country that is banned from such transaction.

    3. The Lab shall make reasonable efforts to obtain the necessary Export Control Licenses, but the parties acknowledge that the issuance of Export Control Licenses is at the sole discretion of the relevant authorities. If any necessary Export Control License is delayed, denied or revoked, the Lab shall notify You thereof in writing as soon as reasonably practicable, and the Lab shall be entitled to a corresponding extension of the time for provision of the services, and, in case any necessary Export Control License denied or revoked, terminate the Contract, wholly or partly, without liability in relation to You.

    4. Should the Services or any product of the Lab be subject to any Export Control Licenses or any other United States or foreign governmental or court restrictions, You undertakes to conform to and apply the from time to time valid terms of such Export Control Licenses or restrictions.

22. Anti-Corruption

    1. You will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Foreign Corrupt Practices Act of 1977 (“Anti-Corruption Laws”) and that You shall not do, nor omit to do, any act that will lead to the Lab being in breach of any of the Anti-Corruption Laws. You shall:

       1. comply with the Lab’s Anti-corruption policies as may be notified by the Lab to You and updated from time to time (“Relevant Policies”); and

       2. promptly report to the Lab any request or demand for any undue financial or other advantage of any kind received by You in connection with the performance of the Contract.

23. Notices

    All notices to be served by one party on the other must be in writing and shall be deemed duly delivered or served at the time of service if delivered personally and three (3) business days after posting if posted by certified or registered mail (return receipt requested, postage prepaid) in each case to the registered address, if applicable, or if not applicable the last known address of the other party.

24. No Waiver

    No failure or delay by the Lab to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right, power or remedy.

25. Governing Law and Jurisdiction

    1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed under the laws of the State of Delaware, USA, without giving effect to any choice or conflict of law provision or rule.

    2. Notwithstanding sub-condition 25.1, the Contract shall be deemed executed and to be performed in the state where the Services are performed (“Jurisdictional State”). Each party irrevocably agrees that any legal suit, action or proceeding arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) shall be instituted in the state or federal courts located in the Jurisdictional State, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts of the Jurisdictional State and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

    3. If any legal proceeding is instituted to enforce or interpret the provisions of the Contract, the prevailing party(s) shall be entitled to recover its, his, her or their costs, including reasonable attorney fees and expert witness fees, from the non-prevailing party(s) in the proceeding. For purposes of this sub-condition 25.3, reasonable legal fees include the reasonable fees, charges, expenses of counsel, whether in house or outside counsel, whether incurred at the trial court level, appeal or in bankruptcy, administrative or probate proceedings or otherwise and court costs.