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1. INTERPRETATION
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| 1.1 |
In these conditions of supply the following words will (unless the context otherwise requires) have the following meanings: |
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"Allied Paperwork" is, in respect of Contract Research Services and Custom Sequencing Projects only, your valid purchase order and VAT exemption certificate (as applicable) along with a signed Geneservice Proposal;
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"Conditions" the conditions set out below and overleaf.
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"Contract" the contract between us and you for the supply of Services comprising these Conditions and any documents referred to in them.
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"Contract Research Services and Custom Sequencing Projects" those services Ordered by you that have been the subject of express discussion and negotiation between us leading to the preparation of a written services Proposal (including a service specification and fee schedule) to which you have provided your written acceptance;
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"Data Protection Legislation" the Data Protection Act 1998 and all subordinate legislation;
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"Laboratory" any of Geneservice's three laboratories at Units 24 and 25, William James House, Cowley Road, Cambridge CB4 0WU, at 1 Orchard Place, Nottingham Business Park, Nottingham NG8 6PX and at Department of Biochemistry, South Parks Road, Oxford, OX1 3QU;
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"Laboratory Contact" means Simon Mayes or Gemma Beighton for the Nottingham laboratory (Simon.Mayes@sourcebioscience.com and Gemma.Beighton@sourcebioscience.com), Tim Rowe for the Oxford laboratory (Tim.Rowe@sourcebioscience.com), and Dave Negus for the Cambridge laboratory (David.Negus@sourcebioscience.com);
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"Orders" as defined in term 4.1;
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"Party" you or Geneservice; "Parties" means you and Geneservice;
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"Personal Data" any data compiled and/or processed by Geneservice pursuant to this Contract which identifies a living individual;
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"Products" the extracted genomic DNA that is generated by Geneservice in preparing a Sample for certain services, including, for example, genotyping, gene expression, DNA/RNA extraction, DNA banking and whole genome amplification;
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"Results" the narrative report and/or any data arising out of the results of the Services;
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"Routine Sequencing Services" those services Ordered by you which do not fall under the definition herein for Contract Research Services or Custom Sequencing Projects;
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"Samples" the specimens supplied by you to us for use in respect of the Services;
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"Services" the genomic services which may include, custom DNA sequencing services, expression analysis, DNA/RNA extraction, whole genome amplification, bioinformatics services, DNA banking, genotyping services and/or such other services as may be expressly agreed between us and detailed within an independent services specification;
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"we" / "us" / "our" Geneservice Limited, a company registered in England and Wales with number 5355417 and whose registered office is 1 Orchard Place, Nottingham Business Park, Nottingham NG8 6PX.
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"you" / "your" the company, academic institution, firm, body or any representative thereof or any other person who orders the Services.
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| 1.2 |
Any reference in these Conditions to "writing" or cognate expressions includes a reference to facsimile transmission, email or comparable means of communication.
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| 1.3 |
The headings are for reference only and will not affect the interpretation of these Conditions.
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| 1.4 |
We reserve the right at any time without liability to correct any clerical, typographical or other similar errors or omissions made by us.
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| 1.5 |
References to statutes or statutory instruments shall be deemed to be references to those statutes or statutory instruments as the same may be amended or re-enacted from time to time.
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| 2. |
APPLICATION OF TERMS
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| 2.1 |
Subject to clause 2.3, these Conditions are the only conditions on which we are prepared to deal with you in relation to the Services and they will govern the provision of the Services.
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| 2.2 |
No terms, conditions or warranties endorsed upon, delivered with, referred to or stipulated or contained in any purchase order or other similar document delivered or sent by you to us will form part of the Contract.
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| 2.3 |
No variation to, waiver of or addition to these Conditions or any representation about the Services will have any effect unless it is expressly agreed in writing and contains a specific reference to these Conditions.
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| 3. |
THE SERVICES AND YOUR OBLIGATIONS
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| 3.1 |
You warrant that you:
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| | 3.1.1 |
have obtained all necessary third party consents in respect of your submission of the Samples to us for use in undertaking the Services; and
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| | 3.1.2 |
shall comply with all applicable laws in respect of your possession of and/or use of the Samples, Products and Results.
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| 3.2 |
You shall supply us with the Samples in respect of each Order for Services in a timely manner and, in any event, in such a timescale as will allow us to meets any delivery obligations.
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| 3.3 |
You shall be responsible for ensuring that the Samples are in accordance with any specification agreed between us and in any event are in good condition and of appropriate quality and purity and are suitable for use by us in the performance of the Agreement.
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| 3.4 |
If the Sample is of human tissue origin or where relevant to any other Sample that is not of human tissue origin, you warrant that you have gained any required ethical permissions and/or consents for the work to be undertaken by us in respect of the Services and we shall have no liability if these permissions and approvals have not been properly granted.
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| 3.5 |
You understand and accept that the Services provided by us are not intended for clinical use. No claim or representation is intended or made with respect to clinical use (diagnostic, prognostic, therapeutic, or blood banking) of such Services.
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| 3.6 |
You understand and acknowledge that there is a risk that a fraction of the Services may not deliver the end result that you are seeking and you accept that this is foreseeable given the nature of the Services (by way of example, laboratory testing on DNA that may be inadequate in terms of quantity and/or quality may not deliver desired end results). You agree that a successful outcome is intrinsically linked to the quality of the Sample as well as other external variable factors that can influence the end results and we shall not be liable for any less than favourable results of the Services, unless it can be demonstrated that such results are attributable to our negligent acts and/or omissions or breaches of any of the warranties provided by us under this Contract.
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| 3.7 |
You will be required to pay the fees for the Services except in the event of any failure of the Services being due to our acts and/or omissions or breaches of any of the warranties provided by us under this Contract,
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| 3.8 |
In the event that you ask us to repeat Services, you will be required to meet any additional costs associated with the repeated work.
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| 3.9 |
You shall co-operate with us, as we may reasonably determine, in relation to the provision of the Services.
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| 3.10 |
Unless we expressly agree otherwise, you shall acknowledge us by making reference to our name in any resulting publication involving information and/or results generated by us in the course of the conduct of performing the Services. We agree that such acknowledgement should simply state that "Contract Research/Sequencing services (as applicable) were provided by Geneservice Limited www.geneservice.co.uk".
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| Term 3.11 applies only to users of the Affymetrix Services
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| 3.11 |
You understand that under a license agreement with the beneficial owner of Affymetrix Genechips™ (which relates to our provision of Affymetrix Services) we are obliged to pass on certain additional terms and conditions to you. As an end user of Affymetrix Services you expressly agree to review the terms and conditions entitled, the "Customer Service Provider Addendum" and you agree that you will comply with the aforementioned terms and conditions. You can find the customer Service Provider Addendum at the Weblink1 (see Appendix1) or may request a hard copy of this by contacting us directly on Tel: + 44(0)800 6526774.
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| 4. |
ORDERS AND DELIVERY
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| 4.1 |
You shall provide us with an order (the "Order") for the Services and you will submit your Order in accordance with the procedure below applicable to the given type of service you require:-
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4.1.1 | For Contract Research Services or Custom Sequencing Projects, by submitting Samples to the Laboratory together with the Allied Paperwork (which may be submitted as a hard copy by post to: Client Relations, 1 Orchard Place, Nottingham Business Park, Nottingham NG8 6PX, or by facsimile to: + 44 (0)115 9739021; or
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4.1.2 | For Routine Sequencing Services, by submitting Samples to the Laboratory accompanied by either a completed sequencing request form which can be downloaded from Weblink2 (see Appendix 1)and submitted to the applicable Laboratory Contact, or by you making an order directly through the online ordering facility at Weblink3 (see Appendix 1).
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| 4.2 |
You must ensure that the content of your order for Services is complete and accurate.
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| 4.3 |
Unless expressly agreed otherwise in writing by us, any times specified or agreed by us for the delivery of the Services are given in good faith but are an estimate only. If no time is specified or agreed by us delivery will take place within a reasonable time following our receipt of the Samples. We will not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by a delay in the delivery of the Services.
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| 5. |
PRICE AND PAYMENT
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| 5.1 |
Unless expressly agreed otherwise in writing by us, the fees for the Services shall be our standard fees as listed on our website at Weblink2.
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| 5.2 |
We shall invoice you for the work following completion of the Services and you shall pay the fees for the Services within 30 days of receipt of an invoice from us.
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| 5.3 |
Subject to this clause 5.3, all fees are exclusive of VAT, which sum shall be added to the invoice and shall be payable by you. UK VAT is applicable to transactions within the European Union including the UK. For EU based organisations, registered outside the UK, supply of a valid VAT registration number is required, if you are to avoid UK VAT. Eligible bodies in the UK may qualify for zero rating under VATA 1994, Schedule 8, Group 15. Such organisations should check their eligibility status carefully and only supply a certificate where they are fully satisfied that zero-rating applies. We reserve the right to charge VAT to you where you do not provide a valid zero-rating certificate or where instructed to do so by HMRC.
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| 5.4 |
No payment will be deemed to have been received until we have received the payment in full in cleared funds. Time for payment will be of the essence of the Contract.
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| 5.5 |
All payments payable to us under the Contract will become due immediately on termination of this Contract despite any other provision of these Conditions.
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| 5.6 |
You will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
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| 5.7 |
If you fail to pay us any sum due pursuant to the Contract, then without prejudice to our other rights and remedies you shall pay interest to us on such sum from the due date for payment at the statutory rate from time to time in force accruing on a daily basis until payment is made in full (whether before or after any judgement.
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| 6. |
SAMPLES, PROCESSING, STORAGE, RISK AND OWNERSHIP
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| 6.1 |
Upon receipt of Samples we shall verify that the paperwork and the accompanying Sample concur.
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| 6.2 |
We shall take reasonable care of any Sample whilst in our possession.
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| 6.3 |
Provided that the Samples are of satisfactory quality, we shall proceed with the performance of the Services and will provide all data arising from the same. In the event of any Sample appearing to be contaminated the Sample shall be rejected and we will notify you that the Sample has been rejected.
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| 6.4 |
We will not be liable for any loss or damage to Samples unless such loss or damage arises as a direct result of our negligence.
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| 6.5 |
Any defect in the Services which is due in whole or in part to defects in the Samples will not entitle you to terminate the Contract, reject the Services, make any deductions from the fees or claim damages in respect of such defect.
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| 6.6 |
You understand and accept that the Samples and/or Products may be used up in the course of the conduct of the Services. Any unused Samples or Products left over will be stored and/or disposed of in accordance with clause 7.1 herein.
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| 7. |
RESULTS
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| 7.1 |
Unless otherwise expressly agreed, in respect of sequencing services, all unused Products will be sealed by us and stored at 40C and destroyed after 3 (three) weeks and any unused or remaining Samples will be stored at 40C and destroyed after 6 (six) weeks and in respect of contract research all unused Products or Samples will be sealed by us and stored at the appropriate temperature and destroyed after 3 (three) months. If you instruct us otherwise, retention or return of Samples and/or Products will be at your cost and risk.
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| 7.2 |
Unless otherwise expressly agreed between us, we shall supply the Results to you by one of the following mechanisms: email at an agreed email address to be provided by you prior to the commencement of the Services ; via a secure FTP website or on a CD ROM.
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| 7.3 |
We will not under any circumstances be liable for your use of the Results and/or Products.
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| 8. |
CONFIDENTIAL INFORMATION
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| 8.1 |
Each Party shall keep strictly confidential all information concerning the business and affairs of the other together with any information disclosed under this Agreement (including, without limitation, the Samples) obtained from the other either pursuant to this Agreement or prior to and in contemplation of it, shall use the same exclusively for the purposes of this Agreement, and shall disclose the same only to those of its directors, Consultants and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of this Agreement.
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| 8.2 |
The obligations of clause 8.1 above shall survive the termination of this Agreement but shall not apply to any information which: -
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| | 8.2.1 |
the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 8.1 above;
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| | 8.2.2 |
is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party; or
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| | 8.2.3 |
enters the public domain through no act or default of the recipient, its agents or employees.
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| 9. |
WARRANTIES
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We warrant that we shall perform the Services using reasonable skill and care and in accordance with all applicable laws.
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| 10. |
LIMITATION OF LIABILITY
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| 10.1 |
Save for the warranties given by us at clause 9, all warranties, conditions and other terms (whether implied by statute or otherwise) are, to the fullest extent permitted by law, excluded from the Contract.
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| 10.2 |
Nothing in these Conditions excludes or limits our liability for fraudulent misrepresentation or for any death or personal injury caused by our negligence.
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| 10.3 |
Subject to clause 10.2, we will not be liable to you in contract, tort (including, without limitation, negligence), misrepresentation or otherwise for any:
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| | 10.3.1 |
economic loss of any kind (including, without limitation, loss of use, profit, anticipated profit, business, contracts, overhead recovery, revenue or anticipated savings);
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| | 10.3.2 |
any damage to your reputation or goodwill: or
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| | 10.3.3 |
any other special, indirect or consequential loss or damage
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(even if we have been advised of such loss or damage) arising out of or in connection with the Contract.
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| 10.4 |
Subject to the provisions of clause 9 and clause 10.2, our total liability in contract, tort (including, without limitation, negligence), misrepresentation or otherwise arising out of or in connection with this Contract (a "Default") will be limited to the price paid or payable in respect of the Products to which the Default relates.
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| 10.5 |
The provisions of this clause 10 shall survive the termination or expiry (for whatever reason) of this Contract.
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| 11. |
TERMINATION
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| 11.1 |
We may terminate the Contract immediately if:
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| | 11.1.1 |
you fail to pay the price on the due date;
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| | 11.1.2 |
you are in breach of any term of the Contract and have failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
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| | 11.1.3 |
there is a material change in the ownership or control of you; or
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| | 11.1.4 |
you are wound up or become insolvent or have a receiver or administrative receiver appointed or suffer the appointment or the presentation of a petition for the appointment of an administration or any equivalent or analogous event occurs in any other jurisdiction.
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| 11.2 |
The termination of the Contract (howsoever arising) will be without prejudice to any rights and remedies which may have accrued to either party.
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| 11.3 |
Any Conditions which impliedly have effect after termination or expiry will continue to be enforceable notwithstanding termination or expiry.
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| 12. |
FORCE MAJEURE
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We will not be liable to you or be deemed to be in breach of these Conditions by reason of any delay in performing or failure to perform any of its obligations under these Conditions if such delay or failure was beyond our reasonable control including, without limitation, fire, flood, strike or other industrial action of whatever nature. If we are unable to perform our obligations under these Conditions we will promptly notify you of the nature and extent of the circumstances in question.
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| 13. |
GENERAL
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| 13.1 |
You not without our prior written consent assign or transfer the Contract or any part of it to any other person.
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| 13.2 |
We may without your prior written consent assign, transfer or subcontract the Contract or any part of it to any other person.
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| 13.3 |
Each of rights or remedies under these Conditions are without prejudice to any other right or remedy which we may have under these Conditions or otherwise.
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| 13.4 |
Any notice or other document to be served under the Contract must be in writing and may be delivered or sent by prepaid first class post or facsimile transmission. Any notice or document shall be deemed served, if delivered at the time of delivery, if posted, 48 hours after posting and if sent by facsimile transmission, at the time of transmission.
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| 13.5 |
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it will, to the extent of such illegality, invalidity, voidness, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
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| 13.6 |
Failure or delay by either party in exercising any right or remedy provided by the Contract or by law will not be construed as a waiver of such right or remedy or a waiver of any other right or remedy.
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| 13.7 |
A person who is not a party to the Contract will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
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| 13.8 |
The Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
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| Appendix 1: Weblinks |
| Weblink1 |
http://www.geneservice.co.uk/home/tandc/Affy_addendum.pdf
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| Weblink2 |
http://www.geneservice.co.uk/services/sequencing/
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| Weblink3 |
http://www.geneservice.co.uk/services/ordering/seq_order.jsp
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