This document (together with the documents referred to in it) sets out the terms and conditions on which SBS supplies the genomic services listed on its website www.lifesciences.sourcebioscience.com ("the Website") to Customer.
These terms and conditions apply to both services ordered through the Website and services ordered other than through the Website.
Please read these terms and conditions carefully. Customer should understand that by ordering SBS services, Customer agrees to be bound by these terms and conditions.
Customer should retain a copy of these terms and conditions for future reference.
If Customer refuses to accept these terms and conditions, Customer will not be able to order any services from SBS.
1 INFORMATION ABOUT SBS
1.1 www.lifesciences.sourcebioscience.com is a site operated by Source BioScience plc ("SBS") a company registered in England and Wales under registered number 00079136 and whose registered office is at 1 Orchard Place, Nottingham Business Park, Nottingham, NG8 6PX.
1.2 SBS observes the regulations defined in the Clinical Pathology Accreditation, Good Laboratory Practice and Good Clinical Practice through compliance with a single quality management system incorporating all of the aforementioned standards.
1.3 SBS is regulated by the Human Tissue Act 2004 and holds a license from the Human Tissue Authority to store relevant material for the following scheduled purposes:
- determining the cause of death
- establishing after a person's death the efficacy of any drug or other treatment administered to him
- obtaining scientific or medical information about a living or deceased person which may be relevant to any other person (including a future person)
- public display
- research in connection with disorders, or the functioning of the human body
- clinical audit
- education or training relating to human health
- performance assessment
- public health monitoring
- quality assurance
2.1 In these terms and conditions the following words will (unless the context otherwise requires) have the following meanings:
"Conditions" the conditions set out in this document;
"Contract" the contract between SBS and Customer for the supply of Services comprising these Conditions and any documents referred to in them;
"Laboratory" any of SBS’ laboratories at 12649 Ann Street, Santa Fe Springs, CA 90670 and 300 Townpark Drive, Suite 130, Kennesaw, GA 30144.
"Laboratory Contact" means Keya Walker (firstname.lastname@example.org) for the Los Angeles based laboratory and Kodi Braden, (email@example.com) for the Atlanta based laboratory.
"Products" the extracted genomic DNA that is generated by SBS in preparing a Sample for certain services, including, for example, genotyping, gene expression, DNA/RNA extraction, DNA banking and whole genome amplification;
"Results" the data arising out of the results of the Services;
"Samples" the specimens supplied by Customer to SBS for use in respect of the performance of the Services;
"Services" the DNA Sanger sequencing services ordered by Customer;
"Customer" the company, academic institution, firm, body or any representative thereof or any other person who orders the Services.
3. Application of Terms
3.1 Subject to clause 3.3, the Conditions in this Contract shall prevail over any terms or conditions submitted by the Customer or implied by law, trade custom, practice or course of dealing. Where Customer is ordering the Services through the Website and Customer clicks on the button marked "I Accept" and thereafter submits Customers order, or accepts the services, Customer will be deemed to have accepted these Conditions.
3.2 No terms, conditions or warranties endorsed upon, delivered with, referred to or stipulated or contained in any purchase order or other similar document delivered or sent by Customer to SBS will form part of the Contract.
3.3 No variation to, waiver of or addition to these Conditions or any representation about the Services will have any effect unless it is expressly agreed in writing and contains a specific reference to these Conditions. Customer acknowledges that Customer has not relied upon any statement, promise or representation made or given by, or on behalf of, SBS which is not set out in the Contract. Nothing in this clause shall limit or exclude our liability for fraudulent misrepresentation.
4. CUSTOMERS STATUS
4.1 Where Customer places an order through the Website, Customer warrants that:
4.1.1 Customer is legally capable of entering into binding contracts; and
4.1.2 Customer is at least 18 years old.
5. HOW THE CONTRACT IS FORMED BETWEEN CUSTOMER AND SBS
5.1 Customer shall provide SBS with an order for the Services and Customer will submit its order in accordance with the procedure below:
184.108.40.206 where Customer places an order through the Website, by using SBS’ online ordering facility at /genomecube/; or
220.127.116.11 where Customer places an order than through the Website, by submitting Samples to the relevant Laboratory Contact at the Laboratory accompanied by a completed sequencing request form which can be downloaded from www.lifesciences.sourcebioscience.com/genomic-services/dna-sequencing-service.aspx
5.3 Where Customer places an order through the Website for Services, after placing an order, Customer will receive an e-mail from SBS acknowledging that SBS has received Customers order. This does not mean that Customers order has been accepted. Customers order constitutes an offer to SBS to buy Services. All orders are subject to acceptance by SBS. No order placed by Customer shall be deemed to be accepted by SBS until SBS amends the status of Customers order via the order tracking facility on the Website to Processing.
Customer may at any time before the Services are performed amend or cancel an order by providing SBS with written notice and, if Customer amends or cancels an order, Customers liability to SBS shall be limited to payment to SBS of all costs SBS reasonably incur in fulfilling the order until SBS receive Customers amendment or cancellation.
7. THE SERVICES AND CUSTOMERS OBLIGATIONS
7.1 Customer warrants that at all times Customer:
7.1.1 is acting on Customers own behalf and not for the benefit of another person;
7.1.2 shall co-operate with SBS, as SBS may reasonably determine, in relation to the provision of the Services;
7.1.3 shall comply with all applicable laws and regulations in respect of Customers possession of and/or use of the Samples, Products and Results; and
7.1.4 has obtained all necessary ethical permissions and consents in connection with:
18.104.22.168 Customers submission of the Samples to SBS; and
22.214.171.124 SBS’ use of the Samples in carrying out the Services.
7.2 Customer shall supply SBS with the Samples in respect of each order for Services in a timely manner and, in any event, in such a timescale as will allow SBS to meet any performance dates. Time for performance shall not be of the essence.
7.3 Customer shall be responsible for ensuring that the Samples are in accordance with any specification agreed between SBS and in any event are in good condition and of appropriate quality and purity and are suitable for use by SBS in the performance of the Services.
7.4 Customer understands and accepts that the Services provided by SBS are not intended for clinical use. No claim or representation is intended or made with respect to clinical use (including, without limitation, diagnostic, prognostic or therapeutic use, or blood banking) of such Services.
7.5 Customer understands and acknowledges that there is a risk that all of the Services (or any part thereof) may not deliver the Results that Customer is seeking and Customer accepts that this is foreseeable given the nature of the Services; for example, by way of an illustrative example only, laboratory testing on DNA that may be inadequate in terms of quantity and/or quality may not deliver the desired Results. Customer agrees that a successful outcome is intrinsically linked to the quality of the Sample as well as other external variable factors that can influence the Results. SBS shall have no liability whatsoever (howsoever arising) in connection with the Results, including without limitation any defects in the accuracy of the Results, unless it can be demonstrated that such defects in the accuracy of the Results are directly attributable to SBS’ negligent acts and/or omissions or breaches of any of the warranties provided by SBS under the Contract.
7.6 In the event that Customer asks SBS to repeat Services for any reason, Customer will be required to meet any additional costs associated with such repeat work.
7.7 Unless SBS expressly agrees otherwise, Customer shall acknowledge SBS by making reference to its name in any resulting publication involving information and/or results generated by SBS in the course of the conduct of performing the Services. SBS agrees that such acknowledgement should simply state that "Sequencing services were provided by Source BioScience www.lifesciences.sourcebioscience.com".
7.9 SBS will not be liable for any breach by Customer of any applicable laws and regulations of the country for which the Samples, Products and Results are destined (including, without limitation, Customers failure to obtain any necessary permissions and approvals).
7.10 Customer shall procure that each of its employees shall comply at all times with the obligations under the Contract. Customer shall immediately notify SBS in the event that Customer becomes aware of any breach in connection with the Contract.
7.11 Customer shall indemnify SBS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by SBS arising out of or in connection with:
7.11.1 any breach of the warranties contained in clause 7.1;
7.11.2 Customer (or Customers employees') breach or negligent performance or non-performance of the Contract;
7.11.3 any claim made against SBS by a third party arising out of or in connection with the supply of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by Customer or Customers employees; and
7.11.4 any claim made against SBS by a third party for death, personal injury or damage to property arising out of or in connection with defective Results, to the extent that the defect in the Results is attributable to the acts or omissions of Customer or Customers employees.
7.12 The indemnity in clause 7.11 shall apply whether or not SBS have been negligent or at fault.
7.13 If any third party makes a claim, or notifies an intention to make a claim, against SBS which may reasonably be considered likely to give rise to a liability under clause 7.11 ("a Claim"), SBS shall:
7.13.1 as soon as reasonably practicable, give written notice of the Claim to Customer, specifying the nature of the Claim in reasonable detail;
7.13.2 not make any admission of liability, agreement or compromise in relation to the Claim without Customers prior written consent (such consent not to be unreasonably conditioned, withheld or delayed), provided that SBS may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to Customer, but without obtaining Customers consent) if SBS reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;
7.13.3 give Customer and Customers professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within our power or control, so as to enable Customer and Customers professional advisers to examine them and to take copies (at Customers expense) for the purpose of assessing the Claim; and
7.13.4 subject to Customer providing SBS security to its reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as Customer may reasonably request to avoid, dispute, compromise or defend the Claim.
8. ORDERS AND PERFORMANCE
8.1 Customer must ensure that the content of Customer order for Services is complete and accurate.
8.2 Any times specified or agreed by SBS for the performance of the Services are given in good faith but are estimates only and time for performance shall not be made of the essence by notice. If no time is specified or agreed by SBS, performance will take place within a reasonable time following our receipt of the Samples. SBS will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by a delay in the performance of the Services (even if caused by its negligence), nor shall any delay entitle Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
8.3 SBS may deliver the Results by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate contract and no cancellation or termination of any one contract relating to an instalment shall entitle Customer to repudiate or cancel any other contract or instalment.
9. PRICE AND PAYMENT
9.1 Unless expressly agreed otherwise in writing by SBS, the fees for the Services shall be SBS’ standard fees as listed on the Website from time to time, except in the case of obvious error.
9.2 SBS shall invoice Customer for the work following completion of the Services and Customer shall pay the fees for the Services within 30 days of receipt of an invoice from SBS.
9.4 All prices are exclusive of delivery costs (if any), which shall be added to the total amount due.
9.5 The Website contains a large number of products and services and it is always possible that, despite our best efforts, some of the Services listed on the Website may be incorrectly priced. SBS will normally verify prices as part of its dispatch procedures so that, where a Service's correct price is less than SBS’ stated price, SBS will charge the lower amount when performing the Service. If a Service's correct price is higher than the price stated on the Website, SBS will normally, at its discretion, either contact Customer for instructions before performing the Service, or reject Customers order and notify Customer of such rejection.
9.6 In the case of Services, SBS is under no obligation to perform Services for Customer at the incorrect (lower) price, even after SBS has amended the status of Customers order via the order tracking facility on the Website to Processing, if the pricing error is obvious and unmistakable and could have reasonably been recognised by Customer as a mispricing.
9.7 No payment will be deemed to have been received until SBS has received the payment in full in cleared funds. Time for payment will be of the essence.
9.8 All payments payable to SBS under the Contract will become due immediately on termination of the Contract despite any other provision of these Conditions.
9.9 Customer will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
9.10 If Customer fails to pay SBS any sum due pursuant to the Contract, then without prejudice to SBS’ other rights and remedies Customer shall pay interest at 2% over LIBOR to SBS on such sum from the due date for payment at the statutory rate from time to time in force accruing on a daily basis until payment is made in full (whether before or after any judgement).
10. SAMPLES, PROCESSING, STORAGE, RISK AND OWNERSHIP
10.1 Upon receipt of Samples SBS shall verify that the paperwork and the accompanying Sample concur.
10.2 SBS shall take reasonable care of any Sample whilst in its possession.
10.3 Provided that the Sample(s) is of satisfactory quality, SBS shall proceed with the performance of the Services and will provide all data arising from the same. In the event that any of the packaging used to submit the Sample(s) is damaged or the Sample(s) does not (in SBS’ sole discretion) appear to have been sent in accordance with SBS’ oral or written instructions or (if none) in accordance with good industry practice, the Sample shall be rejected and SBS will notify Customer that the Sample has been rejected.
10.4 SBS will not be liable for any loss or damage to Samples unless such loss or damage arises as a direct result of its negligence.
10.5 Any defect in the Services which is due in whole or in part to defects in the Samples will not entitle Customer to terminate the Contract, reject the Services, make any deductions from the fees or claim damages in respect of such defect.
10.6 Customer understands and accepts that the Samples and/or Products may be used up in the course of the conduct of the Services. Any unused Samples or Products left over will be stored and/or disposed of in accordance with clause 11.1.
11.1 Unless otherwise expressly agreed in respect of Services:
11.1.1 all unused Products will be sealed by SBS and stored at 40C and destroyed after 3 (three) weeks; and
11.1.2 any unused or remaining Samples will be stored at 40C and destroyed after 6 (six) weeks.
If Customer instructs SBS to retain (or return) any of the Samples or Products otherwise than as set out in this clause 11.1, retention or return of such Samples and/or Products will be at Customers cost and risk.
11.2 Unless otherwise expressly agreed, SBS shall supply the Results to Customer by one of the following mechanisms:
11.2.1 email to an agreed email address to be provided by Customer prior to the commencement of the Services;
11.2.2 via a secure FTP website; or
11.2.3 on a CD Rom.
11.3 SBS will not (under any circumstances) be liable for Customers (or any third party's) use of the Results and/or Products.
12. CONFIDENTIAL INFORMATION
12.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by SBS and any other confidential information concerning SBS’s business , its equipment, its services and its products.
Subject always to Customer complying with all of Customers obligations under the Contract, SBS warrants that SBS shall perform the Services using reasonable skill and care and in accordance with all applicable laws.
14. LIMITATION OF LIABILITY
14.1 Save for the warranties given by SBS at clause 13, and subject always to the provisions of clause 14, all warranties, conditions and other terms (whether implied by statute or otherwise) are, to the fullest extent permitted by law, excluded from the Contract.
14.2 Nothing in these Conditions excludes or limits SBS’ liability:
14.2.1 for fraud or fraudulent misrepresentation;
14.2.2 for any death or personal injury caused by its negligence; or
14.2.3 for any matter which it would be illegal for SBS to exclude or attempt to exclude its liability.
14.3 Subject to clause 14.2, SBS will not be liable to Customer in contract, tort (including, without limitation, negligence), misrepresentation or otherwise for any:
14.3.1 economic loss of any kind (including, without limitation, loss of use, profit, anticipated profit, business, contracts, overhead recovery, revenue or anticipated savings);
14.3.2 any damage to Customers reputation or goodwill; or
14.3.3 any other special, indirect or consequential loss or damage howsoever caused (even if SBS have been advised of such loss or damage) which arise out of or in connection with the Contract (including, without limitation, any use of the Results).
14.4 Subject to the provisions of clause 14.2 and clause 14.3, SBS’ total liability in contract, tort (including, without limitation, negligence), misrepresentation or otherwise arising out of or in connection with the Contract will be limited to the Contract price.
14.5 The provisions of this clause 14 shall survive the termination or expiry (for whatever reason) of the Contract.
15.1 Either Party may terminate the Contract without liability to the other immediately on giving notice to the other if:
15.1.1 the other Party fails to pay any amount due under the Contract on the due date for payment; or
15.1.2 the other Party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach; or
15.1.3 the other Party enters into administration or becomes insolvent.
15.2 On termination of the Contract for any reason:
15.2.1 the Customer shall immediately pay to SBS all of SBS’s outstanding unpaid invoices and interest and, in respect of Equipment and/or Services supplied but for which no invoice has been submitted, SBS may submit an invoice, which shall be payable immediately on receipt;
15.2.2 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
16. FORCE MAJEURE
SBS will not be liable to Customer or be deemed to be in breach of these Conditions by reason of any delay in performing or failure to perform any of its obligations under these Conditions if such delay or failure is caused by events outside SBS’ reasonable control including, without limitation, acts of god, government action, war or national emergency, acts of terrorism, protests, riots, fire, floods, strikes or other industrial action of whatever nature. If SBS is unable to perform its obligations under these Conditions SBS will promptly notify Customer of the nature and extent of the circumstances in question. SBS’ performance under any Contract is deemed to be suspended for the period that the event in question continues, and SBS will have an extension of time for performance for the duration of that period.
17. DATA PROTECTION
SBS agrees that SBS shall only process Customers personal data (as defined in the Data Protection Act 1998 ("DPA"), and all regulations, codes of practice and guidance notes made thereunder and all subsequent amending or secondary legislation or orders) for the purposes of performing our obligations under the Contract and SBS will at all times process Customers personal data in accordance with the DPA and will take all reasonable security measures as are required to ensure its compliance with the DPA.
18.1 Customer will not without SBS’ prior written consent assign or transfer the Contract or any part of it to any other person.
18.2 SBS may without Customers prior written consent assign, transfer or subcontract the Contract or any part of it to any other person.
18.3 Each of rights or remedies under these Conditions are without prejudice to any other right or remedy which SBS may have under these Conditions or otherwise.
18.4 Applicable laws require that some of the information or communications SBS send to Customer should be in writing. When placing orders through the Website, Customer accepts that communication with SBS will be mainly electronic. SBS will contact Customer by e-mail or provide Customer with information by posting notices on the Website. For contractual purposes, Customer agrees to this electronic means of communication and Customer acknowledges that all contracts, notices, information and other communications that SBS provides to Customer electronically complies with any legal requirement that such communications be in writing. This condition does not affect Customers statutory rights.
18.5 Any notice or other communication given to a Party under or in connection with the Contract shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing in accordance with this Condition 18.5, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
18.6 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 18.5; if sent by pre-paid post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.
18.7 The provisions of Condition 18.6 shall not apply to the service of any proceedings or other documents in any legal action.
18.7 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it will, to the extent of such illegality, invalidity, voidness, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract shall continue in full force and effect to the fullest extent permitted by law.
18.8 The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Contract by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
18.9 This Contract will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators, successors and permitted assigns.
18.10 These Conditions and any document expressly referred to in them represent the entire agreement between SBS and Customer in relation to the subject matter of any Contract and supersedes any prior agreement, understanding or arrangement between SBS, whether oral or in writing.
18.11 SBS and Customer each acknowledge that, in entering into the Contract, neither SBS nor Customer has relied on any representation, undertaking or promise given by the other party or that could be implied from anything said or written in negotiations between SBS and Customer prior to such Contract except as expressly stated in these Conditions.
18.12 Neither party shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in these Conditions.
18.13 SBS have the right to revise and amend these Conditions from time to time. Customer will be subject to the policies and Conditions in force at the time that Customer order Services from SBS, unless any change to those policies or these Conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by Customer), or if SBS notifies Customer of the change to those policies or these Conditions before SBS send Customer the Dispatch Confirmation (in which case SBS shall have the right to assume that Customer has accepted the change to the Conditions, unless Customer notifies SBS to the contrary within seven working days of receipt by Customer of the Results).
18.14 It is the intention of the Parties to this Contract that this Contract and the performance under this Contract, and all suits and special proceedings under this Contract, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of Georgia, without regard to the jurisdiction in which any action or special proceeding may be instituted. The parties irrevocably agree that the courts of the United States shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter (save that SBS shall be entitled to seek interim relief in any court in any jurisdiction willing to accept jurisdiction to protect its IPR and confidential information).
April 2016 (USA)