1.1 The definitions and rules of interpretation in this clause apply in these Terms (unless the context requires otherwise).
|Applicable Data Protection Laws
||(i) to the extent UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Supplier is subject, which relates to the protection of personal data;
||All applicable laws, regulations, regulatory requirements and authorisations, decisions and guidance of regulatory authorities, professional association codes or other requirements applicable in the context of providing the Services, including guidance issued by the European Commission, the European Medicines Agency, such as the Eudralex Volume 4 cGMP guidance, cGCP, cGLP, cGDP and any other guidance documents issued by the Medicines and Healthcare product Regulatory Authority (MHRA) or equivalent in any jurisdiction in which the Services are performed.
|Background Intellectual Property Rights
||Means Intellectual Property Rights belonging to or licensed to a Party which existed prior to the date of the Purchase Order or which are developed or obtained by or for a Party after the date of the Purchase Order but are unrelated to the Services.
||A day other than a Saturday, Sunday, bank or other public holiday in England.
||Evox Therapeutics Limited incorporated and registered in England and Wales with company number 10076821, whose registered address is Oxford Science Park, Medawar Centre, East Building, Robert Robinson Avenue, Oxford, OX4 4HG
||information in whatever form (including, without limitation, in written, oral, visual or electronic form and wherever located) including but not limited to: (a) the business, operations, customers, partners, collaborators, employees, consultants, agents and finances of Customer for the time being confidential to Customer (b) proprietary information, know-how, formulae, trade secrets, data, specifications, methods, processes, strategies, designs, photographs, drawings, specifications, software, inventions, invention disclosures, intellectual property, unpublished patent applications, technology, samples, materials, Materials, Specifications and technical literature and information of Customer (c) any notes, extracts, analyses, compilations, studies, interpretations, materials, memoranda or other documents prepared by the Supplier which contain or reflect any Confidential Information (d) any information that the Supplier creates, develops, receives or obtains in connection with the Services including the Deliverables (e) any proposals or requests for additional services or amendments to the Services, and finally whether or not such information (if in anything other than oral form) is marked confidential, whether prior to or after the date of the Purchase Order, in the course of the Parties' evaluation, negotiation of or performance of the Services.
||the contract between Customer and the Supplier for the supply of Services in accordance with these Terms, as more fully defined at clause 2.1.
||means any materials supplied to the Supplier by Customer, and as more particularly described in the Purchase Order, as well as any progeny, compositions, combinations, derivatives or modifications thereto.
||all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of Customer or its customers and business contacts, and any equipment, keys, hardware or software provided for the Supplier's use by Customer to provide the Services, and any data or documents (including copies) produced, maintained or stored by the Supplier on Customer or the Supplier's computer systems or other electronic equipment to provide the Services.
||The date for delivery of the Goods or completion of the Services as specified in the Purchase Order.
||Any works, deliverables, documents, data, records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, Software, Software Documentation, Materials, goods or equipment and all other materials in whatever form, including but not limited to physical, hard copy and electronic form produced as part of or coincidental to the provision of the Services.
||The General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law
||Any event beyond the reasonable control of a Party and whose effect such Party could not reasonably have avoided or provided against including but not limited to acts of God, fires, floods, wars, strike, etc but which shall for the avoidance of doubt not include, failure of suppliers or subcontractors of a Party.
||The goods (or any part of them), which may include Tangible Software Assets or equipment, to be purchased by Customer as set out in the Purchase Order.
|Good Industry Practice
||exercising the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade.
||commercial general liability insurance cover, Employers' liability insurance, professional indemnity insurance and public liability insurance;
|Intellectual Property Rights
||patent applications, patents, rights to inventions, supplementary protection certificates, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, registered design, database rights, rights in confidential information (including know-how and trade secrets) and any other similar intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights to claim priority of such intellectual property and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world, including those created, developed, subsisting or used in connection with the Services and whether in existence at the date of the Purchase Order or created in the future;
||any invention, idea, discovery, development, improvement or innovation made in the provision of the Services, whether or not patentable or capable of registration, and whether or not recorded in any medium;
||Customer Materials and all materials: (a) obtained by the Supplier from a third party; (b) manufactured by the Supplier in provision of the Services; (c) or as otherwise supplied to Customer by the Supplier as part of providing the Services, including in relation to any Services performed on Customer Materials, and as more particularly described in any Purchase Order, as well as any progeny, compositions, combinations, derivatives or modifications of the above mentioned materials.
||Customer Materials and all materials: (a) obtained by the Supplier from a third party; (b) manufactured by the Supplier in provision of the Services; (c) or as otherwise supplied to Customer by the Supplier as part of providing the Services, including in relation to any Services performed on Customer Materials, and as more particularly described in any Purchase Order, as well as any progeny, compositions, combinations, derivatives or modifications of the above mentioned materials.
||means a purchase order issued by the Customer for the purchase of Services from the Supplier.
||means a period of six (6) months following the completion of any Services, or any other period as may be specified in the relevant Purchase Order, or longer if required by any applicable law, rule or regulation.
||all Goods, materials, Materials, information, equipment and services to be provided by the Supplier to Customer as set out in the Purchase Order.
||Any software to be purchased from Supplier by Customer as set out in the Purchase Order or Software Specification and all updates, upgrades, releases and versions, including:
a. the source code and object code; and
b. all other works or material recorded or embodied in the software, including the audio or visual content in any screen-displays in the user interface
||all and any documents (whether in human or machine readable form) relating to the Software, including all:
a. operating manuals, user instruction manuals and training materials; and
b. documents associated with the creation, design, development or modification of the Software, including technical or functional specifications, flow charts, algorithms, architectural diagrams, data models, build instructions, testing or configuration documents and technical data.
||the Intellectual Property Rights in relation to the Software and the Software Documentation which are to be assigned to Customer.
||the specification of the Software agreed in writing between the Parties or set out in the Purchase Order.
||Any specifications, plans, drawings, schedules, data or other information specifying the requirements for the Goods, Deliverables or Services or relating to how they are to be provided or carried out, including any Software Specification.
||the company or entity from whom the Customer purchases the Services as set out in the Purchase Order.
|Tangible Software Assets
||means all physical or tangible embodiments of the Software and the Software Documentation, including all object code and source code of the Software.
||value added tax in the UK or any other applicable sales tax payable in any other jurisdiction;
||value added tax in the UK or any other applicable sales tax payable in any other jurisdiction;
||any program which contains malicious code or infiltrates or damages a computer system without the owner's informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose.
||a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability.
1.2 The headings in these Terms are inserted for convenience only and shall not affect its construction. References to clauses are to clauses s of these Terms, unless specified otherwise.
1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Unless the context otherwise requires, a reference to any agreement or document include (subject to all relevant approvals) a reference to that agreement or document as amended, supplemented, substituted, novated or assigned within these Terms.
1.5 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular. Reference to the word "other" or "including" or "in particular" shall not be given a restrictive meaning because they are followed or preceded (as the case may be) by particular examples intended to fall within the meaning of the general words and shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 Subject to clause 31.1, a reference to writing or written does not include fax or email.
2. APPLICATION OF TERMS
2.1 The Supplier shall supply the Services in accordance with the Purchase Order which, together with any quotation, offer to buy the Services, written acceptance of the Purchase Order or any other document which refers to these Terms, shall, to the extent accepted, form part of the Contract.
2.2 Where an agreement is already in place between the Supplier and the Customer or is then executed which covers the terms of supply of the same Services as are the subject of the Purchase Order, or part thereof (Governing Agreement), the terms of the Governing Agreement shall take precedence over any provision in these Terms if there is conflict or ambiguity between the two. For the avoidance of doubt, any existing or subsequently executed confidentiality agreement or material transfer agreement between the Parties shall not be replaced by these Terms, unless specifically agreed by the Parties in writing.
2.3 Save for any Governing Agreement, these Terms shall govern the Contract to the exclusion of any other terms and conditions that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Subject to clause 2.2, the Purchase Order constitutes an offer by Customer to purchase the Services in accordance with these Terms.
2.5 The Purchase Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing Customer with a written acceptance of the Purchase Order; and
(b) the Supplier doing any act consistent with fulfilling the Purchase Order,
at which point the Contract shall come into existence.
2.6 Subject to clause 2.2, the Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Terms.
2.7 If any of these Terms conflict with any term of the Purchase Order or any term of any other document forming part of the Contract, other than any Governing Agreement these Terms will take priority unless there is an express statement in the Purchase Order or other document that specifies that it prevails over the inconsistent term in these Terms.
2.8 Customer may revise these Terms at any time and such revised terms shall not apply to the current Contract but will apply to any future Purchase Orders placed by Customer.
3. SUPPLIER DUTIES AND OBLIGATIONS
3.1 During the Contract, the Supplier shall:
(a) provide the Services with all due care, skill and ability and in accordance with all Applicable Law, and any applicable Specification;
(b) without prejudice to the generality of the foregoing, ensure that the Goods:
- (i) correspond with their description and any applicable Specification;
- (ii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Customer expressly or by implication, and in this respect Customer relies on the Supplier's skill and judgement;
- (iii) are free from defects in design, material and workmanship and remain so for 12 months after delivery; and
- (iv) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
(c) use its own equipment and resources in providing the Services, but in the event that Customer provides any Customer Property, Customer Materials, equipment or resources to the Supplier or makes them available to the Supplier for use in the Services, the Supplier shall keep them safe and secure, restrict their access and use solely to those people authorised by Customer in writing in advance, and shall only use them for the sole purpose of performing the Services;
(d) comply with all reasonable standards of safety and comply with Customer's health and safety procedures from time to time in force at the premises where the Services are provided, or at Customer's premises (as applicable);
(e) comply with Customer's relevant policies notified to the Supplier in force from time to time;
(f) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(g) have in place appropriate Insurance Policies with reputable insurers, to cover its liabilities under the Contract, and upon request from Customer, shall furnish evidence of such Insurance Policies being in place;
(h) ensure that any goods, Materials, equipment, standards and techniques used in providing the Services are of the best quality and are free from defects in workmanship, installation and design;
(i) obtain and maintain during the term of the Contract, all necessary licences and consents and comply with all Applicable Law in relation to the Services;
(j) hold any Materials in safe custody at its own risk, maintain such Materials in good condition for the duration of the Contract, and not dispose of or use the Materials other than in accordance with Customer's written instructions or authorisations; and
(k) perform the Services in accordance with any agreed service levels as detailed in the Purchase Order, if applicable, as well as Good Industry Practice.
3.2 Customer may inspect and test the Goods or any tangible Deliverables to be provided under the Services at any time before delivery. The Supplier shall remain fully responsible for the Goods or such Deliverables despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.3 If following such inspection or testing Customer considers that the Goods or Deliverables do not conform or are unlikely to comply with the Supplier's obligations under this clause 3, Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.4 Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.5 Without prejudice to any other right of remedy, if any part of the Services is not performed in accordance with these Terms or in accordance with any Specification or otherwise is not acceptable to Customer, then Customer shall be entitled to require the Supplier to:
(a) promptly re-perform the relevant Services or part thereof without additional costs to Customer; and/or
(b) take such steps as Customer considers necessary to remedy the failure by the Supplier to perform its obligations under the Contract.
If there is any inconsistency between Customer’s Specification and the Supplier’s Specification, Customer’s Specification shall prevail, unless agreed otherwise by the Parties in writing.
4. RECORDS OF SERVICES
4.1 Supplier will prepare and maintain complete and accurate records and data relating to the Services (including, where applicable, raw data and electronic laboratory notebooks) and will maintain and store such records and data for the Retention Period.
4.2 Upon completion or early termination of the Services or Contract (or earlier if requested by Customer in writing), copies of all such records and data, and any Materials, Customer Property, Deliverables, Goods, equipment, samples and consumables (including any biological materials and/or reagents, purchased by Supplier on behalf of Customer) will at Customer's option, either be (a) transferred to Customer (or its nominee) at Customer's expense or (b) retained by Supplier at its expense for use in a future Purchase Order by Customer, or until Customer requests a transfer under (a).
4.3 At any time during provision of the Services, Customer may, at Supplier's cost, request the destruction of any records, data, materials and/or samples by submitting a written request to Supplier.
4.4 During provision of the Services, Supplier and Customer shall each nominate a representative as the primary point of contact between the Parties for matters relating to the relevant Purchase Order. At reasonably regular intervals requested by Customer, Supplier’s representative shall promptly meet at such location as mutually agreed by the Parties (or at Customer's option shall communicate by telephone, video conference or email) with Customer's representative to discuss and review the progress and status of the Services being performed by Supplier and the results and data (and any other Deliverables) generated up until the date of such meeting.
4.5 Upon at least forty-eight (48) hours' prior written notice, Customer's representative may visit Supplier's facilities at reasonable times and with reasonable frequency during normal business hours to observe the progress of the Services and review data and records relating to the Services (including such records required to be maintained by Supplier pursuant to clause 4.1 above). Supplier will assist Customer in scheduling such visits.
4.6 Supplier shall promptly inform Customer of any intended or actual inspection of Supplier's premises by any regulatory agency or other governmental authority where such inspection relates to premises used for the Services or any processes or procedures relating to such Services. Supplier shall permit Customer to attend Supplier's premises during any such inspection and following such inspection shall promptly provide Customer with a copy of any adverse comments, finding or reports from any such agency or authority that has or will have an adverse impact on the provision of the Services.
5. FEES AND EXPENSES
5.1 The Supplier shall be entitled to receive the fees for the provision of the Services as set out in the Purchase Order.
5.2 In consideration of the provision of the Services and upon completion of the Services, (or as otherwise specified in the Purchase Order), Customer shall pay all undisputed sums under the invoice submitted by the Supplier within 30 days of receipt, subject to Customer's right to set off. Invoices shall be submitted to email@example.com. Each invoice must contain Customer's Purchase Order number and any supporting documents that Customer may reasonably require.
5.3 If Customer disputes the fees due under any invoice for any reason, Customer shall notify Supplier of the sums disputed as soon as reasonably practicable and the parties shall discuss the matter in good faith in Purchase Order to resolve the dispute as promptly as reasonably possible. For the avoidance of doubt, Customer's failure to pay the disputed fees shall not be deemed to be a breach of the Contract.
5.4 The Fee shall be inclusive of the costs of packaging, insurance and carriage of any Goods and exclusive of value added tax (VAT) or similar indirect taxes.
5.5 No additional charges shall be effective unless agreed in writing with Customer.
5.6 The Supplier shall be entitled to charge interest to Customer on any outstanding amounts at the rate of 2% per annum over the base lending rate from time to time of Lloyds Bank or at 2% per annum where the base rate is below 0%. Such interest will accrue from 60 days after the due date for payment and will continue to accrue until judgment or sooner payment.
5.7 To the extent that, following resolution of any dispute, Supplier is obliged to refund an amount to Customer, interest shall be added to that amount in accordance with clause 5.6.
6. CUSTOMER MATERIALS
6.1 The provisions of this clause 6 shall apply to the extent Customer provides Supplier with any Customer Materials and/or Customer Property and/or wishes to purchase any Materials in the provision of the Services.
6.2 The Supplier shall only use or cause or permit the use of the Materials and/or Customer Property for the sole purpose of performing the Services, and in compliance with all Applicable Laws, and in accordance with all of Customer's instructions concerning the storage (including temperatures), handling, use, return and disposal of the Materials and/or Customer Property as well as all Good Industry Practices.
6.3 The Supplier shall not distribute, disclose or release Materials and/or Customer Property to any person or institution other than those under the direct supervision and responsibility of Supplier for use in performing the Services, and shall ensure that no person will otherwise be allowed to take or send Materials and/or Customer Property to any other entity, unless Customer gives its prior written permission.
6.4 Unless agreed by the Parties as part of the Services, the Supplier shall not itself, and shall not permit any other to, amend, replicate analyse, attempt to modify or reverse-engineer or otherwise seek to determine the structure or sequence of any Materials and/or Customer Property without Customer's permission, nor use any documentation provided with the Materials and/or Customer Property to do so.
6.5 The Supplier shall, at its own cost, obtain, maintain, defend, comply with, retain for a minimum period of ten years and, on request, make available to Customer for examination, all regulatory approvals, clearances, licences and consents required, by any Applicable Law (including any regarding the use, handling and release of genetically engineered or modified proteins or organisms) to use the Materials and/or Customer Property to perform its obligations under the Contract.
6.6 Upon completion or early termination of the Services or Contract, the Supplier shall, as Customer elects, either return the Materials and/or Customer Property to Customer or destroy the Materials under conditions and at such time stipulated by Customer, which may include in the presence of Customer or its Key Personnel.
6.7 All Materials supplied under the Contract by the Supplier, shall comply with any applicable Specifications agreed between the Parties and shall be fit for the purposes notified to the Supplier by Customer (including any further use of the Material by a third party) and shall be of satisfactory quality and free from defects. The Supplier acknowledges that Customer may use the Materials other than for its own internal research purposes and may provide the Materials to a third party for services to be performed for Customer by such third parties.
7. TITLE, RISK AND DELIVERY
7.1 All Goods and Deliverables to be delivered by Supplier to Customer either separately or in relation to the provision of the Services shall be subject to Incoterms 2020 DDP (VAT unpaid) with the destination being Customer’s address as set out at the top of these Terms, unless a clause in these Terms provides otherwise.
7.2 The Supplier warrants that it has full, clear and unencumbered title to all Goods and Materials (supplied by it) that are transferred to Customer. Title to any Goods or Materials supplied by Supplier under the Contract shall transfer to Customer upon delivery or payment, whichever is earlier. Title, right and interest in any Customer Materials or Customer Property provided to the Supplier, shall not transfer to the Supplier or any third party, and shall remain the property of Customer. Nothing in the Contract shall be construed to grant or imply any right or licence to use, make or sell Customer Materials, Customer Property or any Intellectual Property Rights owned or controlled by Customer or to which Customer is entitled pursuant to the Contract for any purpose other than as expressly permitted herein.
7.3 Risk in any Customer Materials or Customer Property provided to the Supplier shall transfer upon delivery to the Supplier. Risk in any physical Goods or Deliverables provided by Supplier to Customer shall only pass to Customer upon delivery to the premises of Customer or such other delivery site agreed by the Parties in writing, and, in the case of any electronic or non-physically tangible Goods or Deliverables, risk shall pass on Customer’s receipt of the same, once confirmed in writing.
7.4 The Supplier shall procure in the name of Customer or so that it is directly enforceable by Customer, any manufacturer's/product guarantee and warranties which are available for any part of the Goods, Deliverables or Services on terms and for the duration consistent with market practice.
7.5 The Supplier shall ensure that, to the extent the Services involve physical delivery of any Goods or Deliverables:
(a) such Goods or Deliverables delivered are properly packed and secured in such manner as to enable them to reach their destination in good condition; and
(b) each delivery of such Goods or Deliverables is accompanied by a delivery note which shows the date of the Purchase Order, the Purchase Order number (if any), the type and quantity of the Goods or Deliverables (including the code number of the Goods or Deliverables, where applicable), special storage instructions (if any) and, if the Goods or Deliverables are being delivered by instalments, the outstanding balance of Goods or Deliverables remaining to be delivered;
(c) delivery of such Goods or Deliverables will be at the destination specified by Customer on the Purchase Order, or, if none is specified, at Customer’s address listed at the top of these Terms, and shall be during Customer’s normal business hours or as otherwise instructed by Customer.
7.6 The Supplier shall deliver the Goods or Deliverables on the Due Date.
7.7 Delivery of any physically tangible Goods or Deliverables shall be completed on the completion of unloading the Goods at the destination specified by Customer on the Purchase Order, or, if none is specified, at Customer’s address listed at the top of these Terms. Delivery of any electronic or non-physically tangible Goods or Deliverables shall be completed on Customer’s receipt of the same.
7.8 If the Supplier delivers materially more or less than the quantity of Goods or Deliverables ordered, Customer may reject the Goods or Deliverables and any rejected Goods or Deliverables shall be returnable at the Supplier's risk and expense. If the Customer accepts the delivery of a wrong quantity, a pro rata adjustment shall be made to the invoice for the Services.
7.9 The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle Customer to the remedies set out in clause 8.
8.1 If the Goods or Services are not delivered or provided on the Due Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Services, Customer may exercise any one or more of the following rights and remedies:
(a) to terminate the Contract;
(b) to reject the Services (in whole or in part) and return any physical Goods or Deliverables to the Supplier at the Supplier's own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods or Deliverables or to otherwise reperform the Services within 10 Business Days of being requested to do so, or to provide a full refund of the price of the rejected Services (if paid);
(d) to refuse to accept any subsequent delivery or provision of the Services which the Supplier attempts to make; and
(e) to claim damages for any costs, loss or expenses incurred by Customer which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
8.2 Customer shall not be deemed to have accepted any Goods or Deliverables supplied under the Contract until it has had a reasonable time to inspect them following delivery, or, in the case of a latent defect, until a reasonable time after the latent defect has become apparent.
8.3 If the Supplier fails to promptly repair or replace rejected Goods or Deliverables or otherwise reperform the Services, in accordance with clause 8.1 the Customer may, without affecting its rights under clause 8.1(e) obtain substitute products or services from a third party supplier, or have the rejected Goods, Deliverables or Services, repaired or reperformed by a third party, and the Supplier shall reimburse Customer for the costs it incurs in doing so.
8.4 Customer's rights and remedies under this clause are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample or any other rights implied into the Contract by statute.
9. KEY PERSONNEL
9.1 Each Party shall appoint the Key Personnel for the duration of the Contract, unless agreed otherwise. The Supplier shall not remove any of the Key Personnel unless:
(a) requested to do so by Customer
(b) the person is on long-term sick leave;
(c) the element of the Services in respect of which the individual was engaged has been completed to Customer's satisfaction;
(d) the person resigns from their employment with the Supplier; or
(e) the Supplier obtains the prior written consent of Customer.
9.2 The Supplier shall inform Customer of the identity and background of any replacements for any of the Key Personnel as soon as a suitable replacement has been identified. Customer shall be entitled to interview any such person and may object to any such proposed appointment within ten (10) Business Days of being informed of or meeting any such replacement if, in its reasonable opinion, it considers the proposed replacement to be unsuitable for any reason.
9.3 Each Party shall ensure that the role of each of its Key Personnel is not vacant (in terms of a permanent representative) for more than ten (10) Business Days. Any replacement shall be as, or more, qualified and experienced as the previous incumbent and fully competent to carry out the tasks assigned to the Key Personnel that is being replaced. A temporary replacement shall be identified with immediate effect from the Supplier or Customer becoming aware of the role becoming vacant.
9.4 Customer may require the Supplier to remove, or procure the removal of, any of its Key Personnel whom Customer considers, in its reasonable opinion, to be unsatisfactory in their performance of the Services for any reason or where there is a material impact on such person's ability to carry out their responsibilities.
9.5 If the Supplier replaces the Key Personnel as a consequence of this clause 9, the cost of effecting such replacement shall be borne by the Supplier.
10. ACCESS TO PREMISES OF CUSTOMER
10.1 If applicable, Customer will allow to persons duly authorised by the Supplier such access to its sites as is reasonably required for the purpose of providing the Services provided that the Supplier shall remain fully responsible for the act or omission of any such person while on such sites and Supplier shall promptly revoke such authorisation on Customer's written request. The Supplier shall use such rights of access for the purpose of providing the Services only. The Supplier's and all authorised persons' right of access will terminate immediately upon termination or expiry of the Contract.
10.2 The Supplier will do, and will procure the same from any person authorised to access Customer's sites, nothing which might directly or indirectly cause any breach of the terms of any lease or other terms under which Customer is entitled to occupy the sites.
10.3 Access to the sites will be subject to the Supplier's compliance with any relevant policies or procedures of Customer, and Customer reserves the right to exclude any person from the sites in the event of an actual or threatened breach this clause.
10.4 To the extent permitted by law, Customer excludes any liability for any loss or damage caused to property brought onto the sites by the Supplier or to persons who enter the sites with the Supplier's authorisation and further excludes any and all liability for Supplier's use, storage or handling of Customer Materials and Customer Property, other than where caused by Customer's gross negligence or wilful misconduct.
10.5 Customer will allow persons duly authorised by the Supplier such use of Customer's Property solely as is reasonably required for the purpose of providing the Services. The Supplier shall use, store and handle Customer Property and Materials with all reasonable skill and care and in accordance with best practice and all instructions, safety data sheets, protocols, labels and information provided to Supplier (and shall procure the same from any authorised persons).
10.6 Supplier shall indemnify Customer against any and all resulting losses, costs, claims, expenses (including legal fees) or damages incurred by Customer as a result of Supplier's breach of the warranty at clause 10.5, (except where caused by Customer's gross negligence or wilful misconduct) or as a result of Supplier not otherwise taking the appropriate precautions in relation to the handling of the Materials and Customer Property.
11. OTHER ACTIVITIES
Nothing in the Contract shall prevent the Supplier from being engaged, concerned or having any financial interest in any other business, trade, profession or occupation during the Contract provided that such activity does not cause a breach of any of the Supplier's obligations under the Contract nor will they create a conflict of interest (including between the pecuniary or personal interests of the Supplier).
12. CONFIDENTIAL INFORMATION AND CUSTOMER PROPERTY
12.1 The Supplier shall keep all Confidential Information of Customer confidential and, unless otherwise agreed in writing by Customer and subject to clause 12.3, shall not disclose it to any third party. The Supplier shall not use Customer's Confidential Information for any purpose other than in performance of the Services under the Contract.
12.2 Supplier shall establish and maintain adequate security measures (which shall be no less than Supplier applies to its own Confidential Information and which shall include any reasonable security measures proposed by Customer from time to time) to safeguard the Confidential Information of Customer and any raw data and reports generated under the Contract from unauthorised access or use.
12.3 The Supplier shall only disclose the Confidential Information of Customer to those of its employees, officers and professional advisers who reasonably need access for the purposes of the Contract and subject to ensuring that the Supplier's employees, officers and professional advisers are aware of and comply with the provisions of this clause.
12.4 The obligations under clause 12.1 shall not apply to:
(a) any use or disclosure authorised by Customer or required by law; or
(b) any information which is already in, or comes into, the public domain otherwise than through the Supplier's unauthorised disclosure.
12.5 At any time during the term of the Contract, and in any event on termination of the Contract, the Supplier will promptly on request return all and any Customer Property and/or Confidential Information of Customer in its possession to Customer.
12.6 The obligations in this clause 12 shall survive the termination of the Contract.
13.1 Unless otherwise specified in the Purchase Order, Supplier shall submit monthly status reports to Customer detailing the current status of the Services and the results and data (and any other Deliverables) generated up until the date of each report. Such reports shall be submitted to Customer in an appropriate format, including, at the Customer’s discretion, Microsoft Word, Microsoft PowerPoint and/or PDF format.
13.2 Unless otherwise specified in the Purchase Order, within 30 days of completion of the Services, Supplier shall submit a final report ("Final Report") to Customer. The Final Report shall include any data, results or any other information generated in or relevant to the performance of the Services or Customer’s use thereof, including documentation to indicate conformity with any Specification. Such reports shall be submitted to Customer in an appropriate format, including at the Customer’s discretion, Microsoft Word, Microsoft PowerPoint and/or PDF format.
13.3 All reports to be shared with Customer under this clause 13 must be sent to Customer by email at least 24 hours prior to any meetings to discuss such report(s).
14. DATA PROTECTION
14.1 Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 14 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under Applicable Data Protection Laws.
14.2 The Parties have determined that, for the purposes of Applicable Data Protection Laws, each Party is a data controller in respect of any personal data it may share under the Contract. The Parties do not intend to routinely share personal data under the Contract, but may, in the course of providing or receiving the Services:
(a) exchange contact details of its employees;
(b) use contact details of the other Party's employees as part of recording the Contract or details of Services on Customer's computer systems and file storing and sharing platform;
(c) record video meetings between the Parties;
(d) take notes at any in-person meetings; and
(e) share personal data included in any laboratory books.
14.4 Should the determination in clause 14.2 change, the Parties shall use all reasonable endeavours to make any changes that are necessary to this clause 14 or enter into a separate data sharing agreement as required under the Applicable Data Protection Laws.
14.5 Where the Services involve any tissue or material derived from a human, the Supplier shall not attempt to identify the individual and shall ensure that all data or information collected, stored or processed relating to the material or tissue remains anonymous to the Supplier and Customer and has been anonymised in accordance with Applicable Data Protection Laws.
15. INTELLECTUAL PROPERTY
15.1 Unless agreed otherwise in writing, Customer shall retain ownership in all Intellectual Property Rights of whatever nature in the Customer Property and its Background Intellectual Property. Any use of Customer Property or its Background Intellectual Property by the Supplier, shall solely be for the purposes of performing its obligations under the Contract.
15.2 The Supplier hereby assigns to Customer, and warrants that it will procure such assignment where necessary, with full title guarantee the copyright and all existing and future Intellectual Property Rights in the Deliverables and Inventions and all Software Rights and all materials embodying these rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under the Contract, the Supplier holds legal title in these rights and inventions on trust for Customer.
15.3 The Supplier shall not include or incorporate any of the Supplier's Background Intellectual Property Rights or any Intellectual Property Rights of any third party into the Deliverables without the prior consent of Customer. Where Customer agrees that such Background Intellectual Property or Intellectual Property Rights may be incorporated into the Deliverables or Services, the Supplier grants, or shall procure the grant from any third party, to Customer, a royalty-free, non-exclusive licence with a right to sub-licence to any third party to enable Customer to enjoy and commercialise the full benefit of the Services.
15.4 The Supplier undertakes:
(a) to notify to Customer in writing full details of any Inventions promptly on their creation;
(b) to keep confidential details of all Inventions;
(c) whenever requested to do so by Customer, and in any event on the termination or expiry of the Contract, promptly to deliver to Customer all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Deliverables and the process of their creation which are in its possession, custody or power;
(d) not to register nor attempt to register any of the Intellectual Property Rights in the Deliverables, nor any of the Inventions or Software Rights, unless requested to do so by Customer; and
(e) to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Deliverables, Software Rights and the Inventions has passed, or will pass, to Customer.
15.5 The Supplier warrants to Customer that:
(a) it has not given and will not give permission to any third party to use any of the Deliverables or the Inventions, nor any of the Intellectual Property Rights in the Deliverables;
(b) it is unaware of any use by any third party of any of the Deliverables or Intellectual Property Rights in the Deliverables; and
(c) the use of the Deliverables or the Intellectual Property Rights in the Deliverables by Customer will not infringe the rights of any third party.
15.6 The Supplier agrees to indemnify Customer and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by Customer, or for which Customer may become liable, with respect to any intellectual property infringement claim or other claim relating to the Goods, Deliverables or Inventions supplied by the Supplier to Customer during the course of providing the Services.
15.7 The Supplier waives, and shall procure the waiver as necessary of, any moral rights in the Deliverables to which it may have, either now or in the future under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such Deliverables or other materials infringes the Supplier's moral rights.
15.8 The Supplier acknowledges that, except as provided by law, no further remuneration or compensation other than those provided for in the Contract are due or may become due to the Supplier in respect of the performance of its obligations under this clause 15.
15.9 The Supplier undertakes, at the expense of Customer, at any time either during or after the expiry or termination of the Contract, to execute all documents, make all applications, give all assistance and do all acts and things as may, in the opinion of Customer, be necessary or desirable to vest the Intellectual Property Rights in, and to register or obtain patents or registered designs in, the name of Customer and to defend Customer against claims that works embodying Intellectual Property Rights or Inventions relating to the Contract, infringe third party rights, and otherwise to protect and maintain the Intellectual Property Rights in the Deliverables and the Inventions.
15.10 The obligations in this clause 15 shall survive the termination of the Contract.
16.1 To the extent any Purchase Order includes the purchase of any Software, the Supplier warrants that, at the date of this agreement:
(a) it is the sole legal and beneficial owner of the Software Rights and the Tangible Software Assets, free from encumbrances;
(b) it is unaware of any infringement or likely infringement of any of the Tangible Software Assets or Software Rights;
(c) so far as it is aware, the exploitation of the Tangible Software Assets or Software Rights will not infringe the rights of any third party;
(d) complete and accurate particulars of the Software are set out in the Software Specification;
(e) the Software:
- (i) is functioning properly in accordance with all applicable specifications (including the Software Specification) and with any applicable service levels;
- (ii) has been developed in accordance with Good Industry Practice;
- (iii) does not contain any Virus or Vulnerability and has not within the last 12 months been infected by any Virus or Vulnerability or accessed by any unauthorised person;
- (iv) has been operated and used substantially in accordance with the Software Documentation (including any recommendations as to environmental conditions and power supply); and
- (v) meets all applicable legal or regulatory requirements, including (in respect of any element of the Software which processes personal data) the requirement for privacy by design and privacy by default.
(f) the Software Documentation includes sufficient user and technical information (including supplier's recommendations) reduced to writing and in a commonly readable format so as to enable reasonably skilled personnel in the field to use, operate and maintain the Software without the need for reference to any other documents or further assistance from any person;
(g) there has not been included or used any software licensed under the General Public Licence or any similar licence containing a "copyleft" requirement (Restrictive Open Source Code) in, or in the development of, the Software, nor does any element of the Software operate in such a way that it is compiled with or linked to any Restrictive Open Source Code. Without prejudice to the foregoing, no open-source software (meeting the Open Source Initiative's open source definition from time to time) has been included or used in, or in the development of, any element of the Software in contravention of its applicable licence terms and no third party is asserting, or has in the last three years asserted, any such contravention.
16.2 The Supplier shall indemnify Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Customer arising out of or in connection with any breach by the Supplier of the warranties in this clause.
17.1 Without affecting any other right or remedy available to it, the Customer may terminate the Contract:
(a) with immediate effect by giving written notice to the Supplier if:
- (i) there is a change of Control of the Supplier; or
- (ii) the Supplier commits a breach of clause 12.
(b) for convenience, either in full, or in respect of the Services, in part, by giving the Supplier one (1) month’s written notice. Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Services at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss; or
(c) commits any breach of the Customer's policies and procedures which have been notified to the Supplier.
17.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or if such breach is remediable fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party commits any offence under the Bribery Act 2010;
(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
17.3 The rights of the Customer under clause 17.1 are without prejudice to any other rights that it might have at law to terminate the Contract or to accept any breach of the Contract on the part of the Supplier as having brought the Contract to an end. Any delay by Customer in exercising its rights to terminate (or any other right or remedy to it) shall not constitute a waiver of these rights.
18. OBLIGATIONS ON TERMINATION OR EXPIRY
18.1 On the termination or expiry of the Contract, the Supplier shall:
(a) immediately deliver to Customer all Customer Property in its possession or under its control and all work in progress and other documents and data created for or relating to the Services, including the Deliverables or any Inventions;
(b) at Customer's election, return or irretrievably destroy and delete all Confidential Information of Customer in its possession or control; and
(c) provide a signed statement that they have complied fully with the obligations under this clause 18.
18.2 Termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry, and shall not affect any rights or obligations of the Parties under any separate Contract between the Parties in existence at the date of termination. If Customer terminates part of a Purchase Order, its rights under the remainder of the Contract shall not be affected by such termination.
18.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
19.1 The Supplier shall indemnify Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Customer as a result of or in connection with:
(a) any claim made against Customer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods or Deliverables or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in the Goods, as delivered, or the Deliverables to the extent that the defects in the Goods or the Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against Customer by a third party arising out of or in connection with the supply of the Goods, as delivered or the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
19.2 This clause 19 shall survive termination of the Contract.
20.1 The relationship of the Supplier to Customer will be that of independent contractor and nothing in the Contract shall render it an employee, worker, agent or partner of Customer and the Supplier shall not hold itself out as such.
20.2 The Contract constitutes a contract for the provision of services and not a contract of employment and accordingly the Supplier shall be fully responsible for and shall indemnify Customer for and in respect of:
(a) any income tax, National Insurance and social security contributions and any other liability, costs, expenses, professional costs, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, or arising out of any claim by any state agency for any income tax, VAT or social insurances or comparable taxes arising from the payment of the Fee to the Supplier;
(b) any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Supplier or anyone associated with it, including any of its employees, workers, contractors, agents or consultants, against Customer arising out of or in connection with the provision of the Services.
Customer may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Supplier.
21. ENTIRE AGREEMENT AND PREVIOUS CONTRACTS
Subject to clause 2.2, each Party on behalf of itself acknowledges and agrees with the other Party (that the Contract together with any documents referred to in it, including any Purchase Order or Specifications), constitutes the entire agreement and understanding between the Supplier and the Customer and supersedes any previous arrangement, understanding or agreement between them relating to the Goods and/or Services (which shall be deemed to have been terminated by mutual consent);
No variation of the Contract or a Purchase Order, or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
The Contract may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument. Transmission of an executed counterpart of the Contract, but for the avoidance of doubt, not just a signature page, by email, shall take effect as delivery of an executed counterpart of the Contract.
24. THIRD PARTY RIGHTS
24.1 Except as expressly provided elsewhere in the Contract, [a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
24.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person that is not a party to the Contract.
25. FORCE MAJEURE
Neither Party shall be liable to the other Party or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations, if the delay or failure was due to a Force Majeure event which it has notified to the other Party in writing. If a Force Majeure event persists for four weeks or more after notification, either Party may terminate the Contract without further liability to the other Party.
If any of the provisions of the Contract is held to be void, invalid or unenforceable by or as a result of a determination of any court, tribunal, commission or agency of jurisdiction, the Parties agree that such provisions shall be deemed to be deleted from the Contract and that such determination shall not result in the nullity, invalidity or unenforceability of the remaining portions of the Contract. The Parties further agree to replace such void, invalid or unenforceable provisions by valid and enforceable provisions which will achieve as far as possible the Parties' original intent and commercial objectives.
27. NON-ASSIGNMENT AND SUBCONTRACTING
27.1 Subject to clause 27.2, no part of the Contract shall be assignable by any Party to any third party without the prior written consent of the other Party.
27.2 Customer shall be entitled to transfer all or part of the Contract to any third party as part of the sale or transfer of any assets or as part of any licensing or collaboration arrangement with a third party.
27.3 Supplier shall not sub-contract the Contract (in whole or in part) or any of its obligations under the Contract without the prior written consent of Customer.
27.4 If Customer provides consent under clause 27.3, Supplier shall ensure that its agreement with such subcontractor shall contain obligations on the subcontractor which are no less onerous than those on Supplier under the Contract. Supplier shall provide details of the work proposed to be undertaken by the subcontractor and a document setting out the activities of the subcontractor shall be completed and signed by both Supplier and Customer before any activity of the subcontractor commences.
27.5 In the event that Supplier subcontracts any of its obligations under the Contract, Supplier shall remain responsible to Customer for any act or omission of its subcontractor as if such act or omission was an act or omission of Supplier.
28.1 Supplier shall remain solely liable for all taxes, tax liabilities, national insurance and similar contributions in respect of the any persons used or authorised by Supplier to perform the Services and shall reimburse all costs, penalties, expenses, losses suffered or incurred by Customer arising out of any claim by any state government, for example, HMRC, for any income tax or national insurance in respect of such personnel, which may become payable by Customer.
29. ANNOUNCEMENTS AND PUBLICATIONS
Neither Party will use the name of the other Party for promotion of literature or advertising without the prior written permission of said Party (such permission not to be unreasonably withheld or delayed).
30. NON-SOLICITATION OF EMPLOYEES
Each Party undertakes to the other Party that it will not (during the term of the Contract and for a period of twelve (12) months thereafter) knowingly or intentionally directly solicit or entice away from the employment of the other Party any person who was or is engaged in providing the Services to that Party. For the avoidance of doubt, the response by any such person to any open advertisement for employment placed by that Party including without limitation on its careers page or in any national or trade newspaper or journal shall not be deemed to be a breach by that Party of this clause.
31.1 Any notice (other than for or in legal proceedings) given under the Contract, shall be in writing and may be served personally or by registered or recorded delivery mail or in the case of termination of the Contract by Customer, by email.
31.2 Each Party's address for service or notices shall be to its registered address.
31.3 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside the business hours in the place of receipt, when business hours resume.
32. GOVERNING LAW, JURISDICTION AND DISPUTES
32.1 If any dispute arises in connection with the Contract, that the Parties are unable to settle by negotiation, whether at contract manager level or director level, within 21 days, the Parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) model mediation procedure. Unless otherwise agreed between the Parties within 14 days of notice to CEDR, the mediator will be nominated by CEDR. To initiate the mediation a Party must give notice in writing ("ADR Notice") to the other Party requesting mediation. A copy of the request should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR Notice. Without prejudice to the right for either Party to apply for interlocutory injunction or other equitable relief, no Party may commence any other court proceedings in relation to any dispute arising out of the Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other Party has failed to participate in the mediation, provided that the right to issue proceedings shall not be prejudiced by any such delay.
32.2 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 in accordance with the law of England and Wales.
32.3 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims), except in the case of a Party seeking an emergency injunction or equitable relief against the other Party, in which case a claim may be brought in any court of competent jurisdiction