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TERMS AND CONDITIONS

Terms and Conditions of Sale, Complement Genomics Ltd

1. DEFINITIONS AND INTERPRETATION

 

1.1 In these Conditions, unless the context otherwise requires, the following words shall have the following meanings

“Company”

Complement Genomics Limited, a company registered in England and Wales with company number 3929876 whose registered office is at The Durham Genome Centre, Park House, Station Road, Lanchester, Co. Durham, DH7 0EX. The company operates though a number of branded services both B2B and B2C, serving different market sectors. These are itemised on the compgeno.com website and include the services Geneblitz, thatDNAcompany, dadchecksilver, dadcheckgold and ChXout.

“Conditions”

these conditions of supply;

“Contract”

your order and the Company’s acceptance of it under Clause 2.2;

“Force Majeure”

any event or circumstance preventing the Company from performing any or all of its obligations pursuant to these Conditions which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Company;

“Intellectual Property Rights”

patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Kits”

the sampling kits sent to you or an independent third party;

“Project Report”

the final report provided to you by the Company detailing the results from the Services.

“Order”

your order for Services as set out in your purchase order or your written acceptance of the Company’s quotation.

“Services”

the molecular testing services offered by the Company from time to time; and

“you” the legal entity which is placing an Order.

1.2 In addition, in these Conditions:

1.2.1 references to Clauses are references to clauses of these Conditions;

1.2.2 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.3 headings are for convenience only and shall not affect the interpretation of these Conditions; and

1.2.4 a reference to a statute or statutory provision 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.

1.3 Please note that these Conditions apply to the general public and to business customers, which includes inter alia NGOs and charities.

 

2.CONDITIONS

 

2.1 These Conditions shall prevail over any inconsistent terms and conditions contained or referred to, in an Order, confirmation of Order, specification or any other document supplied by you or implied by law, trade custom, practice or course of dealing.

2.2 Your Order constitutes an offer by you to purchase the Services on these Conditions. No offer placed by you shall be accepted by the Company other than:

2.2.1 by a written acknowledgement issued by the Company; or

2.2.2 (if earlier) by the Company starting to provide the Services.

2.3 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force

2.4 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.5 Any quotation given by the Company shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.

 

3.SERVICES

 

3.1 You agree to purchase and the Company agrees to provide the Services in accordance with these Conditions.

3.2 The Company shall perform the Services:

3.2.1 with all reasonable care and skill;

3.2.2 within 4 weeks of receiving the Kits and any samples but no later than 6 months; and

3.2.3 in accordance with industry practice.

3.3 The Services shall be provided by the Company’s employees who are suitably qualified and skilled to perform the Services.

3.4 The Company may divide the Services into separate parts or stages to run consecutively or concurrently as the Company, in its sole discretion, may decide. Unless expressly agreed in writing, the Contract shall be non-severable, irrespective of the number of parts or stages into which the Company chooses to divide the Services.

3.5 The Services and the Project Report will strictly relate to the Kits and samples provided by you.  Please note the Project Report and any interim results will not deal with any transmission post dating the specific time and date of the samples provided to us.

3.6 The Company may (at its sole discretion) release to you interim results or an interim report prior to the delivery of the Project Report.

 

4.YOUR OBLIGATIONS

 

4.1 You shall:

4.1.1 co-operate with the Company in all matters relating to the Services;

4.1.2 provide the Company in a timely manner such materials and information as the Company may reasonably require and ensure that it is accurate in all material respects;

4.1.4 follow all instructions that have been provided with the Kits;

4.1.3 ensure that the terms of the Order are complete and accurate;

4.1.4 provide the Company, its employees, agents, consultants and subcontractors, with access to the your premises, office accommodation and other facilities as reasonably required by the Company;

4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

4.1.6 keep all materials, equipment, documents and other property of the Company (Company  Materials) at your premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.

4.2 If, as a result of your act or omission (or the act or omission of any of your employees, sub-contractors, agents or consultants), the Company is prevented or delayed from performing its obligations under these Conditions, the Company shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

4.3 You shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit and loss of reputation) that arise directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under these Conditions, subject to the Company confirming such costs, charges and losses to you in writing.

 

5.CHARGES AND PAYMENT

 

5.1 In consideration of the provision of the Services, you agree to pay the price set out in the Company’s current price list or as quoted to you.

5.2 Prices for the general public include VAT and for business customers are exclusive of VAT which is payable in addition at the current rate in force from time to time and will be identified as such on any invoice the company may issue.

5.4 If you are a business, you agree to pay each invoice submitted by the Company in full and cleared funds within 15 days of the date of the invoice.

5.5 Time of payment shall be of the essence. Without prejudice to any other right or remedy the Company may have, if you fail to pay on the due date the Company may:

5.5.1 charge interest as such sum from the due date for payment at the annual rate of 4% above the base lending rate of Lloyds TSB Bank plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and you shall pay the interest immediately on demand; and

5.5.2 suspend all Services until payment has been made in full.

5.6 The Company may, without prejudice to any other rights it may have, set off any sums you owe to it against any sums it owes you.

5.7 The Company reserves the right to vary the price for the Services at any time in the event of an increase in the cost of labour or materials or any other variation in the cost to the Company of providing the Services. The Company shall notify you of any changes to the price and you may choose to either proceed with the Contract or cancel the Contract within 7 days of the notification.

 

6.CANCELLATION (BUSINESS ONLY)

 

6.1 You have seven working days from the date on which the Company accepts your Order to cancel the Contract, upon serving a written cancellation notice to the Company at The Durham Genome Centre, Park House, Station Road, Lanchester, Co. Durham, DH7 0EX.

6.2 If you cancel the Contract under Clause 6.1:

6.2.1 the Company may charge you an administration fee and the cost of processing already undertaken;

6.2.2 you must return any Kits the Company has issued in respect of the Services within 14 days of cancellation.

6.3 For the avoidance of doubt, if you do not cancel the Contract in accordance with Clause 6.1 you shall not under any circumstances be entitled to a refund.

6.4 You must keep the Kits in your possession prior to their return to the Company and in good condition with the box seal unbroken. The Company reserves the right to charge you for these Kits, if they are returned to the Company and are damaged in any way.

 

7.DISCLAIMER

 

7.1 The Company makes no representation (express or implied) that the Project Report (or any interim report) is fit for any particular purpose. The Company shall not be liable to you for any direct or indirect loss or damage financial or otherwise suffered by you or any third party arising as a result of the provision to you of the Services and/or the Project Report (or any interim report). If it is intended that the Project Report (and/or any interim report) is to be used in legal proceedings the Company recommends that it is interpreted in conjunction with an appropriate level of legal advice.

7.2 The Company shall assume that you have correctly followed any instructions that have been provided with the Kits and that the samples provided to the Company have not been contaminated in any way,  The Company shall not be held responsible for any contamination that has occurred prior to receiving the Kits and any samples.

7.3 The Company will use its reasonable endeavours to ensure that the analysis of any samples provided by you is carried out to industry standards.

 

8.DELIVERY

 

8.1 You must ensure that you give the Company any necessary information to enable delivery of the Kits and/or Project Report (and any interim report).

8.2 The Company shall deliver the Kits within a maximum of 30 days beginning on the day following that on which you submit your Order to the Company for the Services.

8.3 Whilst every effort shall be made to comply with stated delivery date, all such delivery dates and times are approximate only and shall not be binding. Time of delivery shall not be a condition of the Contract.

 

9.CONFIDENTIALITY

 

9.1 Subject to Clause 9.2, the Company shall keep in confidence the subject matter of the Contract, the samples taken, the Project Report and any interim report.

9.2 The Company may disclose the results of the Services:

9.2.1 to its employees, officers, representatives, advisors, agents, or sub-contractors who need to know such information; and

9.2.2 as may be required by law, court order or any governmental authority.

9.2.3 you agree that the company may at its discretion retain any non human material sent to it and any DNA derived from said material for the purposes of bio banking and further research, the results of which shall belong to the Company.

10.LIMITATION OF LIABILITY

10.1 This Clause 10 sets out the entire financial liability of the Company (including the liability of any of its employees, agents, consultants and sub-contractors) to you in respect of:

10.1.1 any breach of these Conditions;

10.1.2 any use made by you of the Services; and

10.1.3 any representations, statements or tortious acts or omissions (including negligence) arising under or in connection with the Contract and/or these Conditions.

10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions.

10.3 The Company has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1m per claim. The limits and exclusions in this clause reflect the insurance cover the Company has been able to arrange and you are responsible for making your own arrangements for the insurance of any excess loss.

10.4  References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.5 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

10.6 Nothing in this clause 10 shall limit your payment obligations under the Contract.

10.7 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

10.7.1 death or personal injury caused by negligence;

10.7.2 fraud or fraudulent misrepresentation; and

10.7.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

10.7.4 Subject to clause 10.3 (No limitation in respect of deliberate default), and clause 10.5 (Liabilities which cannot legally be limited), the Company’s total liability to you for all loss or damage shall not exceed the value of the contract.

10.8 The caps on the Company’s liabilities shall be reduced by:

10.8.1 payment of an uncapped liability;

10.8.2 amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.

10.8.3 Subject clause 10.5 (No limitation in respect of deliberate default), clause 10.6 (No limitation of customer’s payment obligations) and 10.7 (Liabilities which cannot legally be limited), this clause 10.9 sets out the types of loss that are wholly excluded:

10.8.4 loss of profits.

10.8.5 loss of sales or business.

10.8.6 loss of agreements or contracts.

10.8.7 loss of anticipated savings.

10.8.8 loss of use or corruption of software, data or information.

10.8.9 loss of or damage to goodwill; and

10.8.10 indirect or consequential loss.

10.9 Unless you notify the Company that you intend to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

10.10 This clause 10 shall survive termination of the Contract.

 

11.INTELLECTUAL PROPERTY RIGHTS

 

11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by the Company.

11.2 The Company grants you, or shall procure the direct grant to you, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Project Report (excluding materials provided by you) for the purpose of receiving and using the Services and the Project Report in its business.

11.3 You shall not sub-license, assign or otherwise transfer the rights granted in clause 11.2.

11.4 You grant the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to the Company for the term of the Contract for the purpose of providing the Services you.

 

12.DATA PROTECTION

 

12.1 The Company is registered under the Data Protection Act 1998 and will comply with all of its relevant provisions. Your personal data will be processed by the Company in connection with the Services.

12.2 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency.

 

13.TERMINATION

 

13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 7 days written notice.

13.2 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:

13.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

13.2.2 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;

13.2.3 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; or

13.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy

13.3 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to you if:

13.3.1 you fail to pay any amount due under the Contract on the due date for payment; or

13.3.2 there is a change of control of you.

13.4 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between you and the Company if:

13.4.1 you fail to pay any amount due under the Contract on the due date for payment;

13.4.2 you become subject to any of the events listed in clause 12.2 (c) or clause 12.2 (d), or the Company reasonably believes that you are about to become subject to any of them; and

13.4.3 the Company reasonably believes that you are about to become subject to any of the events listed in clause 12.2 (b)

 

14.CONSEQUENCES OF TERMINATION

 

14.1 On termination or expiry of the Contract:

14.2.1 you shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the you immediately on receipt;

14.2.2 you shall return all of the Company Materials and any Project Reports which have not been fully paid for. If you fail to do so, then the Company may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

14.3 Termination or expiry of the Contract shall not affect any 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.

14.4 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.

 

15.SAMPLES

 

15.1 You hereby warrant that you are legally entitled to possess any samples you provide to the Company, having particular regard to (and without limitation to) the Human Tissue Act 2004, to the Wildlife and Countryside Act 1981 and any amendments to these pieces of legislation which may have subsequently been made. You agree to indemnify the Company against all costs, claims, proceedings, expenses (including legal costs) and any loss or damage that the Company may suffer as a result of you providing the Company with any samples which have not been legally obtained.

15.2 Unless otherwise agreed in writing with you, the Company shall be entitled to destroy all samples received from you or derived from samples provided by you together with any associated result, analysis or documentation after three months and 12 months respectively from the date the Project Report is sent to you.

15.3 In the event that the Company agrees to keep samples for longer than set out in Clause 14.2, an additional sample storage fee will be charged to you.

15.4 Samples may be returned to you at your request after the date the Project Report is sent to you. An additional fee may be charged by the Company for this service.

 

16.FORCE MAJEURE

 

If the Company is prevented or delayed in its performance of any of its obligations under these Conditions by Force Majeure, it may notify you of the circumstances giving rise to Force Majeure. The Company shall not be liable for delay in performing or failure to perform its obligations under these Conditions if such a delay or failure results from events, circumstances, or causes beyond its reasonable control (Force Majeure). Such delay or failure shall not constitute a breach of these Conditions and the time for its performance shall be extended by a reasonable period agreed between the parties.

 

17.GENERAL

 

17.1 Waiver

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy

17.2 Notices

17.2.1 All notices (and all other documents) to be served under these Conditions (in addition to any requirements as to notices set out in the latter) shall be in writing and shall be delivered or sent:

17.2.1.1 to the Company, at the Company’s registered office address; and

17.2.1.2 to you, at the postal address you provide during the order process.

17.2.2 A notice shall be delivered by hand or sent by prepaid first class recorded delivery.

17.2.3 A notice shall be deemed to have been received:

(a) if delivered by hand between 9.00 am and 5.00 pm on a Business Day (such time period being referred to in this Clause 14 as “Business Hours”) when so delivered, or if delivered by hand outside Business Hours, at the next start of Business Hours;

(b) if sent by first class recorded delivery post on a Business Day, at 9.00 am on the second Business Day after posting, or, if the notice was not posted on a Business Day, at 9.00 am on the third Business Day after posting.

17.2.4 In proving service of a notice, it shall be sufficient to prove that delivery was made or that the envelope containing that notice was properly addressed and posted.

17.3 Entire Agreement

  1. a) 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. b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
  3. c) Nothing in this clause shall limit or exclude any liability for fraud.

17.4 Variation

No variation of these Conditions shall be effective unless it is in writing and executed by or on behalf of each of the parties.

17.5 Relationship Between Parties

Nothing in these Conditions and Contract shall constitute or be deemed to constitute a partnership or other form of joint venture between the parties or constitute or be deemed to constitute either party the agent or employee of the other for any purpose whatsoever.

17.6 Third Party Rights

A person who is not a party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.

17.7 Severance

If any provision or part-provision of these Conditions and Contract are or become invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of these Conditions and Contract deleted under this Clause 16.7  the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.8 Assignment

The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

You shall not assign, novate, sub-contract or otherwise dispose of the Contract without the prior written consent of the Company which may be withheld at the Company’s discretion.

17.9 Applicable Law and Jurisdiction

These Conditions and Contract shall be is governed by and shall be interpreted in accordance with, the laws of England and Wales. Each party irrevocably submits to the exclusive jurisdiction of the English and Welsh Courts in relation to all matters arising out of or in connection with these Conditions.

 

Date last modified: 07 January 2021

 

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