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EU NHP terms and conditions of sale

This Contract determines the terms and conditions upon which you, the Buyer, agree to purchase animal research products from Envigo RMS (“Envigo”). Envigo reserves the right to revise and update these terms and conditions. All such changes take effect once they have been notified to the Buyer.

These Terms are dated February 2017.

1. AGREEMENT

1.1. These Terms and Conditions (hereinafter referred to as “Terms and Conditions”) constitute the entire agreement between Envigo and the Buyer and apply to all animal research products provided by Envigo on behalf of Envigo unless otherwise agreed in writing. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Envigo which is not set out in these Terms and Conditions.

1.2. The placing of an order for animal research products with Envigo shall constitute an offer by the Buyer to purchase such animal research products from Envigo in accordance with these Terms and Conditions (an “Order”), which shall only be deemed to be accepted when Envigo confirms receipt of such Order. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Buyer are complete and accurate

2. CONDITIONS OF SALE

2.1. The Buyer, for purposes of all transactions, shall be the party who pays Envigo for the animal research products even if, at the request of Buyer, the animal research products are provided to a third party.

2.2. These Terms and Conditions shall apply to the entire exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in any other documentation or implied by law, trade custom, practice or course of dealing shall form part of any contract relating to the provision of the animal research products and the Buyer waives any right that the Buyer might otherwise have to rely on such terms or conditions. Any terms and conditions that are inconsistent with or supplemental to these Terms and Conditions are expressly rejected unless otherwise expressly agreed in writing by Envigo.

2.3. No modification of these Terms and Conditions shall be binding or enforceable unless expressly agreed in writing by Envigo.

2.4. If the Buyer requires a minimum quantity of surgically modified animal research products, the Buyer should order a surplus to offset any potential destruction caused by animal behavior. The Buyer should contact Envigo for applicable advance order times required for each animal research product model.

3. DELIVERY

3.1. Envigo shall ensure that each delivery of the animal research products is accompanied by a delivery note which shows the date of the Order, all relevant Envigo and Buyer reference numbers, the type and quantity of the animal research products and, if the Order is being delivered by instalments, the outstanding number of animal research products remaining to be delivered.

3.2. Envigo shall deliver the animal research products to the location set out in the Order or such other location as the parties may agree (“Delivery Location”).

3.3. Delivery of the animal research products shall be completed on the animal research product’s arrival at the Delivery Location if delivered using Envigo-arranged transport or upon the completion of loading of the animal research products at the relevant distribution location if using any Buyer or Buyer-arranged transportation.

3.4. Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. Envigo shall not be liable for any delay in delivery of the animal research products that is caused by a Force Majeure Event (as defined in Section 13) or the Buyer’s failure to provide Envigo with adequate delivery instructions or any other instructions that are relevant to the supply of the animal research products.

3.5. If the Buyer fails to take delivery of the animal research products, then, except where such failure or delay is caused by a Force Majeure Event or Envigo’s failure to comply with its obligations under the relevant Order:

3.5.1. delivery of the animal research products shall be deemed to have been completed on the date of delivery to the Delivery Location; and

3.5.2. Envigo shall house the animal research products until delivery can take place, and charge the Buyer for all related costs and expenses (including insurance).

4. TITLE AND RISK

The risk and title in the animal research products shall pass to the Buyer on completion of delivery.

5. PRICE AND PAYMENT

5.1. Prices are subject to change without notice, unless otherwise agreed in writing between the Buyer and Envigo.

5.2. Unless otherwise agreed in writing between Buyer and Envigo, prices listed in the attached quote are effective for 60 days from the date of quote submission, with the exception of international or air transportation prices. In case of significant regulatory developments or supply disruptions, Envigo may adjust the prices accordingly.

5.3. The price for the animal research products does not include any: (i) local, state, federal or foreign sales or use taxes, excise taxes, goods and services tax, value added tax, excises or other fees imposed by law or (ii) shipping charges. The Buyer shall assume and shall be solely responsible for any such taxes and charges.

5.4. In addition to the price for male only primate orders, the Buyer shall pay an additional inventory imbalance fee for each male unit specified in the Work Order. For primate orders consisting of more males than females, the Buyer shall pay an additional inventory imbalance fee for each male unit exceeding the female quantity as specified in the Work Order.

5.5. Taxes imposed on Envigo’s income shall remain the responsibility of Envigo.

5.6. Invoices are due and payable in full within thirty (30) days of receipt. Any invoice not paid within thirty (30) calendar days of receipt shall be subject to an interest fee at the rate of the lower of one and a half per cent (1.5%) per month or the highest rate permitted by applicable law. Institutional procurement cards (AMEX, MasterCard, VISA) are accepted as a method for establishing payment terms on a preapproved basis.

5.7. The Buyer shall pay all amounts due to Envigo for the animal research products in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Envigo may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Buyer against any amount payable by Envigo to the Buyer.

6. DELAYS

6.1. Buyer shall pay the current per diem list price to hold the animals until the order is shipped and a shipment delay fee up to 25% of the transportation price quoted.

7. CANCELLATION

7.1. Advance notification of an Order cancellation is required. Buyer-driven order cancellations shall be subject to cancellation fees in accordance with the terms below. The Buyer will be invoiced upon notification of cancellation.

7.2. If any Buyer-requested services including, but not limited to, testing, acclimation, vaccines or treatments are performed by Envigo prior to notification of cancellation, Buyer shall pay the total current list price for the service(s) performed in addition to the cancellation fee.

7.3. Any order cancelled after the shipment leaves a Facility or while in transit to the Buyer’s location shall be subject to a cancellation fee equal to the total order price.

7.4. The following cancellation fees shall apply to an Order:

7.4.1. International Air Shipments The following schedule applies to cancellations of orders requiring international air shipments:

Days prior to shipment Cancellation Fee (percentage of transportation price quoted) 16+ up to 25% 7 – 15 up to 50% 1 – 6 100%

7.4.2. Primates. No fee shall apply for Orders cancelled at least fifteen (15) calendar days prior to agreed shipment date. If cancellation notice is received after the animal research products have been transferred to indoor pre-shipment quarters, the Buyer shall pay ten per cent (10%) of total Order price or a minimum of five thousand US dollars ($5,000).

7.4.3. Special Primate Imports. Alternate cancellation terms may apply to animal research products which are specially imported or which do not conform to Envigo standard specifications, as requested by Buyer. Such alternate cancellation terms shall be set forth in a “special order agreement” and signed by Envigo and the Buyer.

7.4.4. Surgically Modified Animal Research Products. After Envigo’s acceptance of an Order for surgically modified animal research products, the following cancellation fees shall apply unless the Order states that such fees do not apply. If cancellation notice is received:

a) on the day surgery is scheduled, a cancellation fee equal to the total Order price will be charged.

b) less than ten (10) business days prior to scheduled surgery, a cancellation fee equal to half the total Order price will be charged.

Upon completion of the surgery, even if the modified animal research product removes or damages a surgical modification after surgery, including the period of time before, during or after shipment, a cancellation fee equal to total Order price shall apply.

8. NON-BREEDING COVENANT

8.1. Non Breeding Animal research products and/or germplasm are sold exclusively for the Buyer’s internal research purposes. No express or implied right to generate, breed, cross breed or reproduce animal research products sold hereunder and/or use germplasm sold hereunder to reproduce animal research products, is granted to the Buyer.

8.2. In consideration of Envigo’s valuable proprietary rights in the unique genetic composition responsible for animal research products and/or germplasm sold and as a material condition hereof, the Buyer hereby agrees and covenants that it shall not:

8.2.1. generate, breed, cross-breed or reproduce animal research products purchased hereunder;

8.2.2. use germplasm sold hereunder to reproduce animal research products; or

8.2.3. sell, transfer or license to any third party the animal research products and/or germplasm purchased.

9. WARRANTIES

9.1. Envigo warrants that at the time of shipment:

9.1.1. using Envigo transport or a Envigo-contracted courier, the animal research products shall conform to Envigo’s specifications in effect at such time. Any claim by Buyer regarding a failure to meet such specifications must be made within three (3) business days of receipt of any canine or rabbits or fifteen (15) business days of receipt of any other animal research products; and

9.1.2. all surgically modified animal research products shall meet the specifications of Order accepted by Envigo except any defect caused by animal research product behavior. The Buyer waives any rights with respect to such warranty unless it contacts Envigo’s Client Service Team within twenty-four (24) hours of receipt of the animal research products.

9.2. If animal research products are transported by the Buyer or the Buyer’s transportation contractor, Envigo shall have no liability in connection with the animal research products or their health status or physical state from the time of loading at the relevant Envigo Facility or third party facility contracted by Envigo (collectively “Facility”).

9.3. Except as expressly set out in these Terms and Conditions, all warranties, conditions, terms and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings or otherwise (including without limitation as to quality, merchantability, condition, description or fitness or suitability for purpose) in respect of any animal research products to be provided by Envigo are excluded to the fullest extent permitted by law.

10. LIABILITY

10.1. Nothing in these Terms and Conditions is intended to restrict or exclude the liability of either party that cannot be excluded or restricted as a matter of law.

10.2. Envigo’s entire liability in connection with the sale of any animal research product shall be limited to, at Envigo’s option, either (i) the replacement of the animal research product or (ii) refund of the purchase price. In no event shall Envigo’s liability in connection with any order exceed the price paid for the animal research product or service in issue.

10.3. Envigo shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any:

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

10.3.2. consequential loss or any other loss of an indirect nature, arising under or in connection with these Terms and Conditions;

and each type of loss under this Section shall be severable in accordance with Section 14.4.

10.4. Envigo shall not be liable for any failure, error or delay in performing the Services if such failure, error or delay is caused by the Buyer, or is a result of an express instruction from the Buyer or a change in any Buyer information.

11. INDEMNIFICATION

11.1. The Buyer shall indemnify and keep indemnified Envigo and its affiliates and their respective officers, directors and employees on demand and hold Envigo harmless against all actions, proceedings, claims and demands, liabilities, losses or damages (including damages payable by Envigo to its customers and/or damages in lieu of fines or penalties) and all costs, expenses and outgoings (including legal and other professional fees) arising directly or indirectly from or associated with:

11.1.1. the animal research products after delivery;

11.1.2. the harmful or otherwise unsafe effect of the any product resulting from the use of the animal research products or products sold; or

11.1.3. the negligence, gross negligence, intentional misconduct or inaction of Buyer or its agents.

12. TERMINATION

12.1. Envigo may terminate these Terms or Conditions by giving not less than ninety (90) days' notice in writing to the Buyer. Envigo may terminate an Order at any time on written notice to the Buyer. Envigo shall have no liability in connection with termination of these Terms and Conditions or an Order pursuant to this Section.

12.2. Either party may terminate these Terms and Conditions immediately on notice in writing if:

12.2.1. the other party is unable to pay its debts when they fall due;

12.2.2. 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

12.2.3. 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.

12.2.4. any event analogous to the circumstances in the sub-sections above occurs in any relevant jurisdiction.

12.3. A party may terminate an Order prior to completion of the applicable Services at any time and for any reason upon ninety (90) days written notice to the other party.

12.4. Termination of an Order or these Terms and Conditions shall not affect a party’s rights and remedies that have accrued as at termination. Termination of an Order shall not affect any other Order or these Terms and Conditions.

12.5. Any provision of these Terms and Conditions that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

13. FORCE MAJEURE

13.1. Except for Buyer’s liability to pay for the animal research products, Envigo and the Buyer shall be excused from performing its obligations hereunder if its performance is delayed or prevented by any cause beyond the reasonable control of such party including, but not limited to: war, threat of war or warlike conditions, blockade, embargo,, fire, explosion, lightning, storm, drought, flood, earthquake or other natural disaster, pandemic or epidemic, power failure, shortage of labor or supplies, supply chain issues, unavailability of scheduled commercial air transport at commercially reasonable prices, strikes, lock outs, acts of terrorism, riot, civil unrest, insurrection, acts of government or other international bodies or political subdivision (“Force Majeure Event”).

13.2. If such Force Majeure Event prevents, hinders or delays the a party's performance of its obligations for a continuous period of more than four (4) weeks, either party may terminate these Terms and Conditions by giving fourteen (14) calendar days' written notice to the other party.

13.3. Any deadline or time agreed between the parties that falls due or is subsequent to the occurrence of the Force Majeure Event shall be automatically extended for a period of time equal to the period of such an event. Envigo shall promptly notify the Buyer if a Force Majeure Event prevents Envigo from being able to meet any deadline or performance date agreed between the parties.

14. GENERAL

14.1. Use of Names. Neither party shall use the name of the other party or the names of the employees of the other party in any advertising or sales promotional material or in any publication without prior written permission of such party

14.2. No Partnership or Agency. These Terms and Conditions are not intended to create or establish, nor shall be construed as creating or establishing, any agency, partnership or corporate relationship between the parties. Neither party is authorized to bind the other party, contractually or otherwise, nor provide any warranties or representations on behalf of the other party.

14.3. Third Party Rights. Envigo and the Buyer are the sole parties to these Terms and Conditions and nothing herein shall give rise to or be construed as creating any direct or beneficial right in or on behalf of any third party including the right to enforce any of the terms of these Terms and Conditions.

14.4. Severability. If any provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision under this Section shall not affect the validity and enforceability of the rest of these Terms and Conditions.

14.5. Assignment. Envigo may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under these Terms and Conditions and may subcontract or delegate in any manner any or all of its obligations under these Terms and Conditions to any third party or agent. The Buyer shall not, without the prior written consent of Envigo, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under these Terms and Conditions.

14.6. Amendments. No amendments or variations to these Terms and Conditions shall be made unless in writing and signed by the authorized signatories of Envigo and the Buyer.

14.7. Waiver. The failure of a party to exercise or enforce any right under these Terms and Conditions shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter unless the same be agreed in writing signed by Envigo and the Buyer.

14.8. Notices. Any notice, consent, approval, agreement or other document required under these Terms and Conditions shall, in the absence of any express provision to the contrary shall be:

14.8.1. in writing in the English language and shall be deemed to have been duly given if left at or sent by hand or by registered post to a party at the registered company address of such party or such other address as one party may from time to time designate by written notice to the other; and

14.8.2. deemed to have been received by the other party:

a) two (2) business days following the date of dispatch if the notice or other document is sent by registered post;

b) seven (7) business days following the date of dispatch if the notice or other document is sent by registered airmail post; or

c) simultaneously with the delivery if sent by hand.

14.9. Anti-Bribery. The parties agree that each has not and will not, either directly or indirectly, engage in bribery, or offer, or promise, or authorise to pay or make any improper payment of any monies or financial or other advantage, including cash, loan, gift, travel, entertainment, hospitality, facilitation payment, kickback, political or philanthropic contribution, anything of value, or any other perceived benefit to improperly obtain or retain a business advantage in violation of any anti-corruption or bribery laws and further, each party agrees that they shall not take any action that would cause the other party to be in violation of such laws.

14.10. Trade Controls. Notwithstanding any other provision of these Terms and Conditions to the contrary, each party shall comply with, and retain responsibility for its compliance with, all applicable export control laws (e.g., the U.S. Export Administration Regulations) and economic sanctions programs as well as Specially Designated Nationals and Blocked Persons (“SDNs”) relating to its respective business, facilities, and the provision of services to third parties (collectively, “Trade Control Laws”). It shall be in the sole discretion of Envigo to refrain from being directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable Trade Control Laws, including sanctions currently in place against Cuba, Iran, North Korea, Sudan, Syria and SDNs.

14.11. Governing Law. These Terms and Conditions and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in all respects in accordance with the laws of the State of Delaware without regard to its applicable conflicts of laws rule and with the express exclusion of the United Nations Convention on the International Sale of Goods.

14.12. Jurisdiction. All disputes arising out of or in connection with these Terms and Conditions shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules. The seat, or legal place, of arbitration shall be the Netherlands. The language to be used in the arbitration shall be English.