Envigo shall provide the products (“Products”) and services (“Services”) described in the Envigo invoice, quotation, order acknowledgement, protocol, price list, statement of work or other commercial document utilized by Envigo from time to time, to describe the Products or Services (“Envigo Document”), and customer shall purchase the Products and Services pursuant to the specifications contained in the Envigo Document and in accordance with the following terms and conditions:
I. BINDING CHARACTER
All sales and/or purchases of Products and Services are governed by these terms and conditions. Any and all terms and conditions (including any which may be delivered by customer with any purchase order or other commercial document) which are different than, or inconsistent with, or supplement these terms and conditions are rejected unless otherwise expressly agreed to by Envigo in writing. Instructions in a purchase order relating to the date and method of delivery for Products or Services shall be controlling only if accepted by Envigo in writing. No modification of these terms and conditions shall be binding or enforceable unless expressly agreed to by Envigo in writing.
II. PROVISION OF PRODUCTS AND SERVICES
Envigo will provide the Products and perform the Services in accordance with the Envigo Document, which may be amended from time to time upon the mutual agreement of Envigo and the customer. Envigo will adhere to all applicable government regulatory laws, rules and regulations in the jurisdiction from which the Products or Services are supplied (collectively referred to herein as “Laws”). If an amendment requires additional or different services on the part of Envigo, Envigo may agree to perform such services and will be paid an amount mutually agreed to by the parties. Deviations from the Envigo Document may be made in an emergency without the customer’s approval, provided that Envigo shall use commercially reasonable efforts to obtain the customer’s verbal approval, which shall be subsequently confirmed by the customer in writing. The parties acknowledge that during the course of performing the Services in accordance with the Envigo Document, additional costs may be incurred by Envigo as a result of procedural changes which do not amount to or require a change in the Envigo Document, but which are deemed necessary by Envigo to successfully perform the Services, and which could not be foreseen at the date of the Envigo Document. If such procedural changes occur, Envigo shall advise the customer prior to their implementation and solicit the customer’s agreement as to the necessity and additional cost thereof. Should Envigo be unable to contact the customer in advance, the customer agrees that, in order to maintain the integrity of the Services, Envigo may proceed accordingly and Envigo shall be entitled to recover such additional costs from the customer upon presentation of an explanation of such procedural changes and the necessity thereof.
III. RESTRICTIONS ON USE AND BREEDING
i. Any Products purchased from Envigo shall be used by customer in a safe manner, and in accordance with all applicable Laws. In consideration of Envigo’s valuable proprietary rights in the genetic composition responsible for the unique genetic characteristics of all animals purchased from Envigo and descendants of those animals derived by inbreeding or crossbreeding, including unmodified derivatives of those animals or their descendants (“Animals”), the customer, including its employees, agrees that no Animals or other Products may be directly or indirectly: (a) used for any purpose other than the internal research of the customer whether or not for cash or other consideration including, without limitation using any of the Products or any components thereof in manufacturing or to provide a product or a service for clinical, therapeutic, diagnostic or prophylactic purposes or for any other commercial purposes, (b) bred, generated, cross bred, reproduced, licensed or provided (for sale or otherwise) to any third party for any use, or (c) provided to any agent or other third party to provide breeding or other services with respect to such Animals, unless Envigo provides the customer with prior written authorization for deviations from these terms and conditions or an appropriate license.
ii. The purchase of any Products conveys to the customer the non-transferable right to use the Product and the components of the Products only in research conducted by the customer and specifically in accordance with the Envigo Document provided with the Products. If customer fails to comply with the foregoing limitations, in addition to any other remedies available to Envigo, the warranty provided for Products will be automatically voided.
IV. PAYMENT TERMS
i. Unless otherwise set forth in a Envigo Document, prices will be as per Envigo’s published price lists on the day of delivery. If the customer is tax exempt, then it will be the customer’s responsibility to provide Envigo with written proof of the customer’s tax exempt status. The price list may be adjusted by Envigo without notice. Unless otherwise stated in the price list, the prices do not include, and the customer agrees to pay, all applicable, taxes, duties, excise charges and packaging and shipping charges.
ii. The customer will pay Envigo as set forth in the Envigo Document. All invoices are due and payable within thirty (30) days from the date of the invoice, and the customer agrees to pay all invoices submitted. All amounts not paid by the customer when due may, at the option of Envigo, accrue interest from the applicable due date until paid, at a rate that is the lower of (a) the highest rate permitted under applicable Laws and (b) 1.5% per month. In addition, Envigo may elect to cease or suspend the Services or withhold required reports or other deliverables in the event that the customer does not make payments when due and payable. Termination, delay or cancellation fees will be set forth in the Envigo Document and shall be payable, as applicable, in accordance with the terms hereof.
iii. All payments to be made under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of, and without deduction of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If a Party to this Agreement is compelled to make any such deduction, it will pay to the receiving Party such additional amounts as are necessary to ensure receipt by the receiving Party of the full amount which that party would have received but for the deduction.
iv. If, in the reasonable opinion of Envigo, customer’s financial condition is precarious or there has been a materially adverse change in customer’s financial condition, Envigo shall have the right to demand accelerated payment or other assurances that it deems adequate before providing any additional Products or Services.
In the course of providing the Products or performing the Services, Envigo and the customer may exchange proprietary or confidential information. The parties will identify, in writing, such information as confidential and/or proprietary. If a party intends to disclose confidential information to the other party orally, the disclosing party shall (a) alert the other party of the confidential nature of the disclosure prior to the disclosure and (b) provide written notice to the other party of the confidential nature and contents of such disclosure within ten (10) days after making the original disclosure. Each party will use its commercially reasonable efforts to maintain such information in confidence and will employ reasonable and appropriate procedures to prevent its unauthorized publication or disclosure unless required to disclose such information by applicable Laws. Neither party shall use the other party’s proprietary and/or confidential information for any purpose other than in performance of this Agreement. The confidentiality provisions of this Section shall not apply to any part of such information, which (a) is known to the receiving party at the time it was obtained from the disclosing party; (b) is acquired by the receiving party from a third party, and such third party is not known to the receiving party to be bound by an obligation of confidentially to the disclosing party or otherwise prohibited from transmitting such information to the receiving party; (c) is or becomes published or otherwise in the public domain other than by violation of this Agreement by the receiving party; (d) is independently developed by the receiving party without reference to or reliance upon the information provided by the disclosing party; or (e) is required to be disclosed by the receiving party to comply with applicable Laws; provided that the receiving party provides prompt written notice of such disclosure to the disclosing party and cooperates with the disclosing party’s reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.
VI. DATA PROTECTION LEGISLATION
i. Each party shall comply with the Data Protection Schedule attached hereto as Schedule 1 and incorporated by reference into this Agreement.
VII. LIMITED WARRANTY
i. Although Envigo maintains strict control over its environment, breeding and maintenance operations and engages in a comprehensive Health and Genetic Monitoring Quality Control Program, changes in health and genetic status can occur. Genetic and environmental pressures can affect the general health of animals. For this reason, Envigo recommends that its Animals be monitored and tested after delivery. If customer is unable to perform such monitoring and testing, Envigo will provide assistance to customer upon request. Any testing of the type discussed in this Section must commence no later than seven (7) calendar days after customer’s initial receipt of the Animals and be completed no later than twenty-one (21) calendar days after customer’s receipt of the Animals. Should customer accept delivery of Products, customer will not be entitled to return the Products to Envigo for any reason.
ii. Envigo warrants that the Products and Services shall conform in all material respects to the specifications contained in the Envigo Document and applicable Laws at the time of delivery or completion. Envigo does not warrant or represent that the results of the Services will be acceptable to any regulatory or governmental agency to which they are presented or that the results of the Services will enable the customer to further develop, market or otherwise exploit any product or service.
iii. Other than described herein, ENVIGO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. CUSTOMER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE PRODUCTS AND SERVICES. ALL OBLIGATIONS OR LIABILITIES OF ENVIGO FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTION, USE, OR PERFORMANCE OF ITS SERVICES OR PRODUCTS, EXCEPT AS PROVIDED HEREIN, ARE FULLY DISCLAIMED AND EXCLUDED.
iv. Any claim for breach of this limited warranty must be made in writing to Envigo upon discovery of such loss or damage and no later than: (a) in the case of Products, seven (7) calendar days after the date the Products are delivered, or (b) in the case of Services, the date that the Services are completed, after which time the Products or Services shall be deemed finally accepted. The customer must retain for Envigo’s inspection all Products alleged to be defective.
v. Risk of loss and title to the Products shall pass to customer once the Products leave Envigo’s facility or are delivered to a common carrier, as applicable.
VIII. LIMITATION OF LIABILITY
i. Envigo will not be liable for penalties or liquidated damages or for special, indirect, consequential, punitive, exemplary or incidental damages or loss of profits, revenue or amounts expended in using, storing, or maintaining any such Products) regardless of whether any such losses or damages are characterized as arising from breach of contract, breach of warranty, tort, strict liability or otherwise, even if Envigo is advised of the possibility of such losses or damages, or if such losses or damages are foreseeable.
ii. Envigo’s liability, regardless of the form of action, shall be limited to actual damages and shall not exceed the total price paid for the Products or Services with respect to which such liability arises. In no event shall Envigo be liable for any damages arising from or in connection with any decision by the customer or any third party to use, further research, develop or market any test articles or any derivative, product or service related thereto (or to the Products or Services).
iii. Subject to the limitations set forth in this Section VIII, in the event that Envigo commits a breach of the limited warranty set forth in the Limited Warranty Section above, Envigo’s sole liability, and the customer’s sole remedy, shall be for Envigo to (a) replace the Products or issue a credit therefore or (b) conform the portion of the Services giving rise to the breach to the relevant specifications.
iv. If any provision or part provision of this Section VIII is invalid, illegal or unenforceable, Envigo and the customer shall negotiate in good faith to amend such provision or part provision so that, as amended, it achieves to the greatest extent possible, the intended commercial result of the original provision.
v. Nothing contained herein shall exclude or restrict a Party hereunder for death or personal injury caused by that Party’s negligence or for fraud or fraudulent misrepresentation.
The customer agrees to defend, indemnify, save and hold harmless Envigo and its parent, subsidiaries and affiliates and their respective directors, managers, members, shareholders, officers, employees and agents (“Indemnified Parties”) from and against any claims, demands, suits, actions, causes of action, losses, costs, damages, fines and liabilities, including reasonable attorney, expert and other professional fees (“Claims”) arising out of or in connection with or attributable to (a) the research, development, manufacture, distribution, use, sales or other disposition by the customer, or any distributor, collaborator, customer, sublicensee, representative or agent of the customer, of any test articles and/or any other substances upon which the Services were performed or for which the Products were used, (b) any infringement of any third party’s patent rights or unauthorized use or misappropriation of its know-how, (c) the customer’s negligence or willful misconduct,(d) personal injury related to contact with the Products during visits to Envigo’s facilities or after delivery of the Products to the customer, or (e) the harmful or otherwise unsafe effect of any product resulting from research involving the Products and Services, and will pay any costs and damages which may be assessed against the Indemnified Parties.
X. FORCE MAJEURE
Envigo shall not be responsible for any delays arising, directly or indirectly, from fires, floods, earthquakes, explosions, strikes, labor difficulties, acts of terrorism, riots, war, insurrection, embargo, government decrees or orders, civil or military authority, acts of animal activism, failure or curtailment of Envigo’s usual sources of supply, disease, acts of God, or any other event, occurrence or condition which is beyond Envigo’s reasonable control.
XI. APPLICABLE LAW
These terms and conditions will in all events and for all purposes be governed by, and construed in accordance with, the laws of the State of Indiana in the United States of America (“US”) in circumstances where the Envigo Document is generated by an Envigo legal entity in the US, and the laws of England and Wales where the Envigo Document is generated by an Envigo legal entity outside the US. Any choice of law principle or international treaty that would dictate the application of the law of another jurisdiction is specifically excluded to the fullest extent possible.
Each provision of these terms and conditions is severable, and subject to Section VIII iv, if any provision shall at any time be held to be contrary to law or invalid or unenforceable, the remaining terms, conditions and provisions shall not be affected thereby but shall remain in full force and effect. As used in this Section “provision” shall mean and include any word, clause, sentence, sub-paragraph, paragraph, section or portion of these terms and conditions.
DATA PROTECTION SCHEDULE
Data Protection Legislation shall mean the General Data Protection Regulation ((EU) 2016/679) and any other data protection or privacy law relevant in the applicable Jurisdiction as defined in this Agreement.
1. DATA PROTECTION
1.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
1.2 The parties acknowledge that in entering into this agreement and performing their respective obligations thereunder, each party may collect and process certain Personal Data, meaning information about identifiable individuals, pertaining to employees or representatives of each company. In this regard, each party may act as a data controller or data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation) in relation to the Personal Data of each other’s employees or representatives.
1.3 Without prejudice to the generality of clause 1.1, the parties will ensure that they have all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data for the duration and purposes of this agreement.
1.4 Without prejudice to the generality of clause 1.1, each party shall, to the extent that the General Data Protection Regulation applies to processing in relation to any of each other’s employees or representatives Personal Data processed in connection with the performance of obligations under this agreement:
(a) process that Personal Data only on the written instructions of the respective Data Controller unless the Data Processor is required by Applicable Laws to otherwise process that Personal Data. Where the Data Processor is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Data Processor shall promptly notify the Data Controller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Data Processor from so notifying;
(b) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Data Controller, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
(i) appropriate safeguards are in place in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Data Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Data Processor complies with reasonable instructions notified to it in advance by the Data Controller with respect to the processing of the Personal Data;
(e) assist the Data Controller, at its cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Data Controller without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Data Controller, delete or return Personal Data and copies thereof on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
1.5 The Data Controller consents to the Data Processor appointing a third-party processor under this agreement and the Data Processor shall promptly inform the Data Controller of the identity of the third-party processor. Data Processor confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Data Controller and the Data Processor, the Data Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
1.6 Either party may, at any time on not less than thirty (30) days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement.
2 July 2018