AVACTA ANIMAL HEALTH LIMITED (AAH)

STANDARD TERMS & CONDITIONS OF BUSINESS

IMPORTANT NOTE: AAH provides results based on data communicated by you the primary care veterinary surgeon; we therefore do not purport to diagnose or treat your patient.  Without personally having made a physical examination or conducted tests on the patient, the diagnosis and treatment decisions are the ultimate responsibility of the primary care veterinary surgeon and should not be based solely on laboratory results or general literature.   1           CONTRACT AND TERM

1.1        The Contract shall apply to all Goods and/or Services and are the only terms and conditions upon which AAH will deal with the Customer in this respect, to the entire exclusion of all other terms or conditions.

1.2        Submission of a Sample Submission Form by the Customer shall constitute the Customer’s acceptance of the terms of the Contract and the Customer confirms that the person who submits the Sample Submission Form is authorised to incur the expenditure on behalf of the Customer.

1.3        The Sample Submission Form shall become binding on AAH’s receipt of the Sample Submission Form.

Term:

1.4       The Contract shall commence on the Commencement Date and, subject to Clause 9 below, shall continue for the Term.

2          SERVICES

2.1       AAH’s appointment to provide the Services to the Customer is on a non-exclusive basis.  AAH shall not be prevented from providing the Services to other customers.

2.2       The Customer acknowledges that the nature of the Services are iterative and AAH cannot guarantee the results of AAH’s performance of the Services.

2.3       The Customer shall be responsible for making its own assessment of whether the results arising from the Services are fit for, suitable and appropriate for its intended use, including the appropriate treatment for the patient.

2.4       The Customer shall be responsible for ensuring that the Samples are of sufficient and appropriate quality for the performance of the Services.  AAH shall not be liable to the Customer for any failure to perform the Services caused by or arising as a result of defective or contaminated Samples.

2.5       Any information provided to the Customer by way of interpretation of the results of the Services whether by AAH (including its third party consultants, manufacturers, representatives and/or agents) is for general guidance only and AAH shall not be liable for any loss and/or damage whatsoever or howsoever suffered by the Customer and/or the patient owner from any reliance on such information.  The Customer agrees that this limitation on AAH’s liability is commercially reasonable as AAH does not undertake a physical examination of the patient and the Customer is responsible for the diagnosis and treatment of the patient.

3          SAMPLES; SAFETY AND COMPLIANCE

3.1       The Customer shall keep true, accurate and up-to-date records detailing the traceability of each batch number of each Samples.  The Customer shall immediately notify AAH of any defect in the Samples that would render the Samples unsafe; or any error or omission in the instructions for use of the Samples; or any adverse events in respect of the Samples.

3.2       Samples should be delivered at the Customer’s cost and risk to AAH on the delivery date set out in the Sample Submission Form at AAH’s address in the Glossary marked for the attention of either the person who prepared the quotation or other designated AAH laboratory contact.

3.3       The Customer shall be responsible for complying with the relevant and applicable legislation in the Relevant Jurisdiction relating to the transport, handling and storage of the Samples, including compliance with Applicable Law.

3.4       The Customer shall obtain the necessary express informed permissions and consents from the owner of the patient and indicate this on the applicable Sample Submission Form (including without limitation, in respect of veterinary surgeon/client confidentiality and in accordance with all applicable data protection legislation) for: use of the Samples by AAH in order to perform the Services; and (ii) the storage, use and destruction of any residual or surplus Samples by AAH for its academic and/or commercial research and development purposes in order to further its product and service offering and develop further diagnostic tests (“R&D Purposes”).  AAH will not supply the residual Samples to any third parties.

3.5       The Customer shall comply with the Royal College of Veterinary Surgeons Code of Professional Conduct for Veterinary Surgeons and Supporting Guidance (or equivalent guidance from the relevant veterinary authority in the Relevant Jurisdiction) as best practice in respect of the obtaining and supply of Samples.

3.6       Any and all outputs resulting from AAH’s use of the Samples (including without limitation, data, results, Intellectual Property Rights, products) for R&D Purposes are owned by AAH.  The patient’s owner may retract their original consent for AAH to use the Samples for R&D Purposes.  In such circumstances, AAH will destroy the relevant Samples and shall not be under any obligation to return such Samples to the Customer or to the patient’s owner.  The Customer shall ensure that it has obtained the necessary consents in order to give effect to the provisions of Clauses 3.4 to 3.6.

4          SUPPLY OF GOODS

4.1       AAH will supply such quantities of the Goods as are ordered by the Customer from time to time.  Such order shall become binding on acceptance of the order by AAH.

4.2       AAH will use its reasonable endeavours to deliver the Goods on the delivery date specified in the order.  Stated delivery times shall be an estimate only and time of delivery shall not be of the essence.  Delivery of the Goods shall be on an ex-works basis (INCOTERMS 2000, as amended).

4.3       Risk in and responsibility for loss of or damage to the Goods shall pass to the Customer on delivery of the Goods in accordance with Clause 4.2 above.

4.4       Title and ownership of the Goods shall pass to the Customer on payment of the Price payable to AAH in full and cleared funds (together with such other sums that are due and owing by the Customer to AAH under this or any other contract.  Until title has passed, AAH may recover the Goods at any time and the Customer irrevocably licences AAH (and its authorised representatives) to enter its premises for the purpose of recovering any such Goods.  Until title to the Goods has passed to the Customer it shall possess the Goods as fiduciary agent and bailee of AAH.  The Customer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to AAH.

5           PRICES AND PAYMENT

5.1        If payment is conditional on AAH quoting a Purchase Order number from the Customer, AAH must receive a Purchase Order number prior to commencing the Services.

5.2        In consideration for the Services, the Customer shall pay the Price to AAH within thirty (30) days of the invoice date.  The Customer shall not withhold payment of any amount due to AAH by way of any set-off, counter-claim, abatement, or other similar deduction.  It is a condition of the provision of the Services that the Customer shall pay the Price strictly in accordance with the payment terms.  The Price shall be exclusive of any applicable sales or service tax (including VAT), delivery charges, taxes, levies and duties.

5.3        Customers in the USA may make payment in US Dollars (US$).  Please contact the AAH Accounts Department for further details.

5.4        AAH has the right to withhold or deduct amounts payable under the Contract due to any breach of the Contract by the Customer or to withhold or deduct such sums (by way of set-off or otherwise) owing to AAH from sums due to the Customer under the Contract.  AAH may charge interest on late payment at a rate of 8% (eight per cent) above the then current Bank of England base rate from time to time.

5.5        If the Customer fails to pay any invoice in accordance with the Contract, AAH shall be entitled to:

5.5.1     suspend or discontinue all or any part of the provision of the Services, including withholding the results of the Services; or

5.5.2     cancel any outstanding, or refuse to accept any further orders for the Services;

and this Clause 5.5 shall be without prejudice to the provisions of Clause 5.4 above.

6           WARRANTIES AND LIABILITY

6.1       Subject to the Customer’s compliance with Clause 3 any claim by the Customer regarding any defect in the performance of the Services shall be notified to AAH within seven (7) days from the date of delivery of the relevant Services.  If the Customer fails to notify AAH, the Customer shall not be entitled to reject the relevant Services and AAH shall have no liability whatsoever or howsoever caused or arising for such defect or failure to perform.

Services Warranty:

6.2        AAH warrants that it will perform the Services with reasonable skill and care and in a timely manner.  However, time for performance is not of the essence and shall not be made of the essence by notice for the purposes of the Contract.

6.3        If the Customer notifies AAH in writing that the Services do not comply with the warranty in Clause 6.2 AAH shall be entitled, at its sole option, to: (i) re-perform the defective Services; or (ii) refund (by way of a credit note) the Price paid by the Customer relating to the defective Services.

Goods Warranty:

6.4        AAH warrants that on deliver the Goods will conform in all material respects with the specification.  If the Customer notifies AAH in writing that the Goods do not comply with this warranty, AAH shall be entitled, at its sole option, to: (i) replace the defective Goods; or (ii) refund (by way of a credit note) the Price paid by the Customer relating to the defective Goods.

6.5        The remedies in this Clause 6 above shall be the Customer’s exclusive remedy in respect of any defective Goods and/or Services and in respect of any liability whatsoever or howsoever caused or arising for any defective Goods and/or Services.

6.6        Subject to the other provisions of this Clause 5, AAH’s total aggregate liability to the Customer under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty or otherwise will in no circumstances exceed the Price paid by the Customer for the Goods and/or Services in respect of which the liability arose and the Customer shall have a duty to mitigate any loss and/or damage arising from such claim.

6.7        The Customer acknowledges that the Price charged by AAH is on the assumption that the liability of AAH and the Customer is as set out in the Contract.  The Customer is advised to insure against any risk not accepted by AAH.

6.8       EXCEPT AS SET OUT IN CLAUSE 5.2 ABOVE, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW, TRADE CUSTOM AND INDUSTRY PRACTICE ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.

6.9       Nothing in the Contract excludes or limits the liability of either party for death or personal injury caused to humans and caused by negligence or for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of applicable law.

6.10        AAH shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any:

6.10.1     loss of profit, revenue, business, savings and/or goodwill (whether direct or indirect); or

610.2     indirect, consequential, economic, punitive, and/or special loss, arising under or in connection with the Contract;

and each type of loss under this Clause 5.9 shall be severable in accordance with Clause 10.5.

7           FORCE MAJEURE

7.1        Neither party shall have any liability under, or be deemed to be in breach of, the Contract as a result of any delays or failures in performance which result from a Force Majeure Event.  If the Force Majeure Event continues for more than thirty (30) days, either party may terminate or cancel all or any part of the Contract, by giving written notice to the other party.

8           CONFIDENTIALITY

8.1        Each party undertakes as a condition of the Contract that at all times it will keep as secret and confidential all Confidential Information of the other party and that such Confidential Information will be used solely for the Services and that it will not, without the written consent of disclosing party disclose the same to any other person other than to the recipient party’s employees (including its legal and/or financial advisors and auditors) to the extent that they require to know the information for the purposes of the Contract.

8.2        The disclosing party shall notify in writing all persons, including its employees, to whom it imparts such Confidential Information that it is confidential information of the disclosing party and shall ensure that such persons comply with the confidentiality provisions of the Contract and in the case of non-employees (including its legal and/or financial advisors and auditors) will put into place with such person a written confidentiality agreement.

8.3        The obligations of confidentiality shall not apply to any part of the information which is or comes into the public domain otherwise than due to a breach by the receiving party of its obligations under the Contract:

8.3.1     is already possessed prior to receipt from the disclosing party;

8.3.2     was independently developed;

8.3.3     was acquired from a third party without obligation of confidence; or

8.3.4     has to be disclosed to comply with a court order or is required to be disclosed under any securities law or regulation or the rules of a securities exchange (provided reasonable notice has been provided to the disclosing party to the extent legally possible);

PROVIDED THAT the Confidential Information shall not be deemed to be within one of the above exceptions because it is covered by more general information within such exceptions.  Any Confidential Information disclosed by the disclosing party will be deemed to be within the public domain only if both the information itself and its use fall within the exceptions set out above.

8.4        The receiving party hereby acknowledges that substantial damage could be done to the disclosing party through any breach of this Clause 8 for which damages at law may not be an adequate remedy, and the receiving party agrees that the provisions of the Contract preventing disclosure and use of Confidential Information may be specifically enforced by a court of competent jurisdiction.

9           INTELLECTUAL PROPERTY

9.1        Each of AAH and the Customer shall retain ownership of all Background IPR and nothing in the Contract will be deemed to grant to the other party any right, title or interest whatsoever in the Background IPR.

9.2        Neither party shall be entitled to use the other party’s brand, trademarks, trade name, get-up and/or logos without the express written permission of the other party.

9.3        AAH shall own all AAH Improvements and such Intellectual Property Rights arising under Clause 3.6.

10         TERMINATION

10.1        Either party may terminate the Contract immediately on written notice if the other party:

10.1.1     commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days of being notified in writing to do so; or

10.1.2     suffers an Insolvency Event.

10.2        Termination of the Contract for any reason shall not affect any rights or liabilities accrued at the date of termination.  The Customer shall not be entitled to any claims, compensation or damages arising out of the valid termination of the Contract nor to any payment for goodwill which may have been established or to any similar payment notwithstanding any provision or rule of law to the contrary.

10.3        The provisions of Clauses 3.4-3.6 (Samples); 5 (Warranties and Liability); 7 (Force Majeure); 8 (Confidentiality); 9 (Intellectual Property); and 10 (General Provisions) shall survive the expiry or termination of the Contract for any reason whatsoever.

11          DATA PROTECTION

11.1        To the extent that AAH needs to process personal data of the Customer and/or pet owners in order to fulfil the Services, it shall comply to the extent required with applicable Data Protection Legislation and AAH’s current Privacy Policy (a copy of which can be found on the AAH website).

11.2        The Customer shall ensure that it has obtained the necessary clear, informed and unambiguous consents from the pet owners in order to permit AAH to process the personal data in accordance with this clause.

11.3        AAH will not supply personal data to third parties for direct marketing purposes.

11.4        All definitions in this Clause have the meaning given to them under the Data Protection Legislation.

11.5        To the extent that either party is a data controller, data processor and needs to process personal data where such processing is necessary for the performance of this Agreement each party shall comply with the provisions of the Data Protection Legislation to the extent that it is applicable.  Avacta will process personal data in accordance with its Privacy Policy, as current copy of which can be found on Avacta’s website.

11.6        To the extent applicable under Data Protection Legislation, each party shall keep a record of: (i) the subject matter and duration of the processing; (ii) the nature and purpose of the processing; (iii) the type of personal data and categories of data subject; and (iv) the obligations and rights of the data controller.

To the extent that a party is acting as a data processor, it shall:

11.7        only act on the written instructions of the controller (unless required by law to act without such instructions);

11.8        ensure that its personnel processing the data are subject to a duty of confidence;

11.9        take appropriate measures to ensure the security of processing;

11.10      only engage a sub-processor with the prior written consent of the data controller and subject to a written contract;

11.11      assist the data controller in providing subject access and allowing data subjects to exercise their rights under the GDPR;

11.12        assist the data controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;

11.13        delete or return all personal data to the controller as requested on the expiry or termination of this Agreement; and

11.14        must submit to audits and inspections, provide the controller with whatever information it needs to ensure compliance with Article 28 GDPR obligations, and inform the controller immediately if it is required to do something infringing the GDPR or other data protection law of the EU or a member state.

11.15        Nothing in this Agreement shall exclude or limit either party’s direct liability under the Data Protection Legislation.

12           GENERAL PROVISIONS

12.1        Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract or any other sales terms provided by AAH from time to time and the Contract and any other sales terms provided by AAH constitute the whole Contract between the parties and supersede all previous contracts between the parties relating to its subject matter.  Each of the parties irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or rescind the Contract by reason of any misrepresentation (other than fraudulent misrepresentation) not contained in the Contract.  The Customer’s standard terms and conditions of purchase are expressly excluded from the Contract.

12.2        No amendment or variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).  No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.

12.3        Any notice required to be given under the Contract, shall be in the English language, in writing and shall be delivered by recorded first class post (deemed service after two (2) business days) or recorded airmail (deemed service after five (5) business days), or by email (headed “FORMAL CONTRACT NOTICE”) to each party required to receive the notice at its address as set out in the Sample Submission Form.

12.4        Except as expressly provided, nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.  A person who is not a party to the Contract shall not have any rights under or in connection, including by virtue of the Contracts (Rights of Third Parties) Act 1999.

12.5        If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

12.6       Each party shall be responsible for the payment of its own costs (and not those of the other party) in connection with the Contract.

12.7        The Contract and any and all matters arising under or in connection with the Contract shall be governed by and construed in accordance with English law and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising under or in connection with it (whether in contract or in tort).

12.8        Each party will comply (to the extent that they apply) with applicable laws relating to anti-corruption, anti-trust and anti-money laundering in the Relevant Jurisdiction.  Each of the parties will not at any time, do anything that could contravene the Bribery Act 2010 (or any equivalent legislation in the Relevant Jurisdiction).  Any breach of this clause shall be deemed to be a material breach of the Contract.

12.9       The Contract may be executed in any number of counterparts, each of which, when executed, shall be an original, and all the counterparts together shall constitute one and the same instrument.  The transmission of an executed counterpart of the Contract (the whole document, not just a signature page) by e-mail (such as in PDF or JPEG) will take effect as the delivery of an executed original counterpart of the Contract.

13          INTERPRETATION

In these Terms and Conditions:

13.1   words expressed in the singular shall include the plural and vice versa;

13.2   words referring to a particular gender include every gender;

13.3   references to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership, joint venture, government, state or agency of state;

13.4   the words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible;

13.5   references to any statute or statutory provision shall include: (i) any subordinate legislation made under it; (ii) any provision which it has modified or re-enacted (whether with or without modification); and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification) whether made before or after the date of your appointment; and

13.6   any defined terms that are not in this Glossary shall have the meaning given to them in the Sample Submission Form.

13.7    Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

13.8   Headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Terms and Conditions.

13.9   If there is a conflict between the provisions of the documents which together form the Contract, the order of priority shall be: (i) these Terms and Conditions; (ii) the Sample Submission Form; and (iii) and other document referred to therein.

GLOSSARY

AAH means Avacta Animal Health Limited (company number:  03879639) whose place of business is at Unit 651, Street 5, Thorp Arch Estate, Wetherby, West Yorkshire, LS23 7FZ, England;

AAH Improvements means any and all Intellectual Property Rights comprised in or arising directly, indirectly, under or in connection with AAH’s Background IPR;

Applicable Law means (including without limitation) the Veterinary Surgeons Act 1966; Animal Welfare Act 2006; Animal Health Act 1981; Animals (Scientific Procedures) Act 1986; Data Protection Act 1998, General Data Protection Regulation 2016 together with: (i) any and all statutes or proclamations or any delegated or subordinate legislation; (ii) any applicable and enforceable European Union right to the extent it applies in the United Kingdom; (iii) any applicable guidance, direction, determination, standards, regulatory requirements or regulatory approvals or approvals; and (iv) any applicable and binding judgment of a relevant court of law; applicable in any Relevant Jurisdiction in each case from time to time.  Any reference to any statute or statutory provision shall;

Background IPR means any and all Intellectual Property Rights in existence and owned by either party prior to the Contract (or arising during the term but entirely independently of the Goods and/or Services);

Commencement Date means the date on which AAH accepts the Sample Submission Form in accordance with Clause 1.3;

Confidential Information means all information (including but not limited to trade secrets) and materials (including but not limited to data, results, technical, financial/business information or marketing strategies) disclosed by either party to the other party together with all information derived by such other party from any such information and any other information clearly designated by the disclosing  party as being confidential to it (whether or not it is marked “confidential”) or which ought reasonably be considered to be confidential;

Contract means the Sample Submission Form and these Terms and Conditions from time to time together with such other documents referred to therein;

Customer means the primary care veterinary surgeon and veterinary practice;

Data Protection Legislation means the General Data Protection Regulation; ICO Guidance and EU Article 29 Working Party Guidance (to the extent that EU law remains applicable), as amended from time to time;

Force Majeure Event means an event or circumstances beyond the reasonable control of the affected party including riot, war, fire, act of God, flood or earthquake, power failure, shortage of labour or supplies, interruption or disruption to the supply of component products, supply chain issues, acts of terrorism, insurrection, acts of government and, which by its nature, could not have been foreseen by it or, if it could have been foreseen, was unavoidable by a reasonable and prudent business;

Goods means the testing kits supplied by AAH to the Customer for the purpose of conducting the tests itself, as detailed in the order.  The Customer shall not supply the Goods to any third party;

Insolvency Event means any of the following events occur in relation to a party (including any related intention, proposal or application): (i) winding-up order; (ii) an administrator or receiver is appointed; (iii) any arrangement or composition with its creditors; (iv) unable to pay its debts when they fall due; (v) any distraint is levied against the party or its property by any third party provided always that such event is material in nature and not remedied or corrected within a reasonable period of time; or (vi) ceases, or threatens to cease, to carry on business; (vii) applies for or is declared bankrupt; or (viii) anything analogous occurs in the Relevant Jurisdiction;

Intellectual Property Rights means any and all patents, trademarks, service marks, registered designs, domain names, applications for any of the foregoing, trade or business names, unregistered trademarks and service marks, copyright, moral rights, rights in data and databases, rights in designs and inventions, utility models, know-how, processes, formulae, confidential information, improvements, modifications, developments, rights under licences, consents, orders, statute or otherwise in relation to any such rights and rights of the same or similar effect or nature, in any part of the world whether now known or future;

Relevant Jurisdiction means the jurisdiction in which the Customer is domiciled;

Samples means the animal serum, blood, whole blood, tissue, serum and/or plasma, urine samples or such other samples in respect of which AAH will undertake the Services;

Sample Submission Form means the form completed by the Customer via the AAH website – www.avactaanimalhealth.com containing the details of the required Services;

Services means the laboratory diagnostic testing services as agreed between the parties and detailed in the Sample Submission Form;

Term means one (1) year from the Commencement Date.

May 2018

 

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