1. Purpose and Affiliates.
1.1 All orders (each, an “Order”) submitted by you, the “Customer” with respect to certain research and development services or products provided in connection with research or clinical activities of Customer (“Services”), and accepted by any of Eurofins Discovery Services North America LLC, Eurofins Panlabs Discovery Services Taiwan, Ltd., Pharmacology Discovery Services Taiwan LTD., Eurofins Cerep, SA, Eurofins DiscoverX LLC, Eurofins Villapharma Research S.L., Eurofins Integrated Discovery UK Ltd., and Eurofins Discovery Products France SAS, Eurofins DiscoverX Products LLC, Eurofins DiscoverX (Shanghai) Ltd., Eurofins Beacon Discovery Inc., and Eurofins Calixar (each individually, and not jointly, “Eurofins”) shall be governed by these General Terms & Conditions of Sale of Products and Services (“Terms and Conditions”). By ordering any Services from Eurofins’ website, Customer accepts that the Order is bound by these Terms and Conditions. The Services described to date in Eurofins’ catalogue, website or other sales materials are subject to changes or may be suspended at any time and from time to time. For purposes of this Agreement, each of Eurofins and Customer may be referred to herein as a “Party” or collectively as the “Parties”.
1.2 Eurofins is hereby authorized to subcontract any or all Services requested by Customer to any of its Affiliates (defined below) or other third party vendor.
1.3 For convenience of Customer, the Eurofins entities who have signed this agreement have entered into a single agreement with Customer to provide Services as set forth herein. However, the Parties acknowledge that each of the Parties to this Agreement and their respective Affiliates are separate and distinct legal entities. The Parties agree that this Agreement is intended to represent a binding obligation of each Party only with respect to matters and issues relating to the Services directly provided by, or received by, such Party, and this Agreement shall be interpreted accordingly, such that each Party is solely responsible for its own individual transactions, conduct, actions, inactions, liabilities, and obligations arising as a result of the Services it provides or uses.
1.4 For the purpose of these Terms and Conditions, “Affiliate” shall mean, with respect to the Party in question, any corporation or other business entity directly or indirectly controlled by, controlling, or under common control with such Party. The term “control” (including, with correlative meaning, the terms “controlled by,” “controlling” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise, or such other relationship as, in fact, constitutes actual control.
2. Area of Application
2.1 The Parties agree that their standard terms, conditions, and pre-printed provisions on any purchase order, acknowledgment, release or other purchasing document purporting to address the same subject matter as this Agreement shall be null and void and of no force or effect, whether such terms conflict with or purport to add terms to this Agreement. Eurofins hereby rejects any offer made by Customer to purchase Services on any terms other than those stated in this Agreement, and hereby objects to and rejects any additional or different terms proposed by Customer with respect to the subject matter of this Agreement, including, but not limited to, warranties of suitability, fitness or non-infringement, and requirements for Eurofins to indemnify Customer, pay damages that are unlimited in amount or pay indirect damages of any kind (including, but not limited to, consequential, incidental, punitive or special damages, and damages for lost profits or revenue, loss of use, business interruption, loss of information or for the procurement of substitute services).No officer (other than the President of Eurofins or designee), employee, agent or subcontractor of Eurofins has the authority to alter or waive any of the provisions of these Terms and Conditions or to make any representation which conflicts with or purports to override these Terms and Conditions; and no such alteration, waiver or representation shall be binding upon Eurofins, unless it is in writing and signed by the President of Eurofins or designee.
2.2 Eurofins shall perform the Services at the facility set forth on the Order. The Customer is responsible for providing the necessary materials, as identified in an Order, prior to Eurofins’ initiation of any Services.
3. Placement of Order
3.1 An Order placed with Eurofins will be deemed valid and accepted by Eurofins only if all of the specific terms of the Order, including, but not limited to, price, estimated turnaround times, and delivery date are agreed upon in writing by the Parties by: (i) the delivery by Customer to Eurofins of a fully-executed written Order; (ii) the written acceptance by Customer of a quote issued by Eurofins; (iii) the receipt by Eurofins of a purchase order from Customer specifically referencing the proposed Order; or (iv) receipt of any Order by Eurofins on Eurofins-approved sample dispatch sheets or electronic order forms. Eurofins is not obligated to start any analytical work unless the Order is clear and it has received all required information from Customer.
3.2 Special terms or conditions of prior Orders, including special pricing, will not automatically apply to subsequent Orders. Each Order accepted by Eurofins will be treated as a separate contract between Eurofins and the Customer.
3.3 Eurofins is entitled to charge management and administrative fees of up to Twenty Five Dollars ($25) in connection with the request for additional services to an existing Order. A request for additional services on samples that have entered the Eurofins’ laboratory will be treated as a new Order and may postpone the estimated delivery date accordingly. A request for any change to the scope or nature of the Services or the term of the order to be provided under any Order shall, if mutually agreed, be set forth in an amended Order and shall include any change to estimated delivery date and fees as agreed by the Parties. Customer is responsible for the timely provision of the necessary Customer Materials, and the necessary information as specified in the Order, facilities or other requirements as identified in an Order, prior to Eurofins’ initiation of any Services under the Order.
3.4 Customer will supply Eurofins with a list of authorized employees who require access to the Eurofins E-Commerce platform for the purpose of placing Orders and data retrieval. Once access rights are granted by Eurofins to Customer employees, Customer will promptly inform Eurofins of any employee whose employment is terminated or who otherwise no longer required to access the Eurofins E-Commerce platform. Eurofins is not responsible for unauthorized use of the Eurofins E-Com platform by Customer employees or by third parties who have gained access to passwords of Customer employees.
4. Price and Terms of Payment
4.1 If the acknowledgment of an Order does not state otherwise, Eurofins’ prices apply “ex works”, excluding packaging, which is charged separately. Any additional cost or disbursement (e.g. incurred by Eurofins in connection with the Order) must be paid by the Customer.
4.2. Prices are exclusive of all applicable taxes (including sales, use and VAT) and are based on tariffs in force at the day of the acceptance of the Order by Eurofins. Applicable taxes are those in force at the date of invoicing.
4.3 Payment of all invoices is due strictly within thirty (30) days of the invoice date. Any dispute about invoices must be raised within thirty (30) days of the invoice date. The challenge of an analytical result will not entitle a Customer to defer payment. Any invoice which remains outstanding after due date may be additionally charged with a minimum administrative penalty of One Hundred U.S. Dollars ($100) and may carry interest at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower.
4.4 Eurofins is entitled to impose a minimum invoice charge of One Hundred U.S. Dollars ($100). Eurofins has the right to charge an administrative fee of at least Fifteen U.S. Dollars ($15) to re-issue an invoice.
4.5 The invoice settlement method is check, bank transfer or direct debit. Any other method of payment must receive prior agreement from Eurofins. Each Party shall provide to the other Party its bank account detail, as needed.
4.6 Eurofins is entitled to require payment of up to one hundred percent (100%) of the quoted Order price as a condition of acceptance.
5. Duties of Customer in Delivering Samples or Materials
5.1 The Customer must always inform Eurofins in writing prior to the shipment of any samples or materials (“Customer Materials”), The Customer hereby warrants and represents to Eurofins that all samples or materials provided to Eurofins by Customer for analysis are to best of Customers knowledge: (i) organized and ready for analysis; (ii) free of foreign materials or substances that were not previously reported by the Customer; (iii) safe and in a stable condition for and during: transportation, storage under normal conditions, and use in connection with instruments and by personnel or representatives(iv) shall not pose any danger to its site, during transportation, in the laboratory or otherwise to Eurofins’ premises, instruments, personnel or representatives; (v) labelled appropriately if they contain dangerous or hazardous materials; (vi) accompanied by any relevant safety data such as Materials Safety and Data Sheets (MSDS) and (vii) delivered to Eurofins for the purposes set forth in this Agreement or any Order free of any third party intellectual property restrictions that would impact the provision of the Services by Eurofins or cause Eurofins to infringe or contribute to infringement of the intellectual property rights of any third party. It is the Customer’s responsibility to ensure compliance with hazardous waste regulations, including regarding information, transportation and disposal, and it must inform Eurofins’ personnel or representatives about sample or material health and safety concerns, including any known or suspected toxic or other contaminant that may be present in the sample or material, its likely level of contamination, and the risks to Eurofins’ premises, instruments, personnel and representatives. The Customer shall be responsible for, and indemnifies Eurofins against, all costs, damages, liabilities and injuries that may be caused to or incurred by Eurofins or its personnel or representatives including on the sampling site, during the transportation or in the laboratory by the Customer’s sample or material or by sampling site conditions for its failure to comply with this Section 5.1.
5.2 Eurofins will conduct an initial examination of the Customer Materials to check their condition before any Services are performed. If the Customer Materials do not comply with the requirements described in this Agreement or any Order, then Eurofins will notify the Customer regarding the non-compliance. With the Customer’s approval, Eurofins may: (i) prepare the Customer Material for application of Services, as set forth in the Terms and Conditions and Order, which may result in an additional charge to the Customer for such preparation and a delay to the Order which will be documented via a written modification to the Order; (ii) terminate the Order if the result of the initial examination is that an analysis or production is impossible or is possible only under more difficult conditions than originally anticipated, in which case Customer shall pay to Eurofins all expenses incurred before the effective date of termination of the Order; or (iii) modify the Order in writing as agreed upon by the Parties to facilitate completion of the Order based upon correction of the non-compliance.
5.3 Customer is responsible for the proper delivery of Customer Materials sent to Eurofins for examination or analyses and for Customer Materials sent for production. Unless otherwise specifically agreed in writing by Eurofins, Eurofins accepts no responsibility for any loss or damage, that may occur to any Customer Materials in transit or to any facility or site where logistics services are being delivered. Customer shall at all times be liable for the security, packaging and insurance of the Customer Materials from its dispatch until it is delivered to the offices or the laboratories of Eurofins that are the site of execution of the Services.
6. Property Rights on Sample Material and Sample Storage
6.1 Customer hereby authorizes Eurofins the right to use the samples or material to the extent necessary for the performance of the Order. Unless the Customer pays for storage or storage requirements are agreed to in writing by Eurofins in any Order, Eurofins shall have no obligation or liability for samples sent to Eurofins for storage, including samples requiring refrigeration. Notwithstanding the above, Eurofins will take commercially reasonable steps to store the samples according to professional practice.
6.2 Unless the Parties hereto have agreed in writing regarding the disposition, destruction or storage of samples, Eurofins shall have the ability to dispose of or destroy samples 3 months after the analysis has been performed. Eurofins also can dispose of or destroy the samples after the agreed upon retention period, without further notice and at Customer’s cost, should an extra cost for Eurofins arise to comply with any regulation (for example, with respect to disposal of hazardous waste). If the Customer requests the return of unneeded sample material, Eurofins will return them to the Customer, at the Customer’s sole cost and risk.
7. Delivery Dates, Turnaround Time
7.1 Due to the uncertainty of the delivery of samples or material according to the necessary timelines, the availability of critical reagents to conduct the studies, and other unforeseeable events, the delivery dates and turnaround times provided by Eurofins to the Customer are best estimates and do not constitute a commitment by Eurofins. Nevertheless, Eurofins shall make commercially reasonable efforts to meet the agreed upon project deadlines.
7.2 Promptly after the analysis and/or Services have been performed, the results shall be sent to the Customer by email or other electronic means, or by regular mail, post or courier, to the attention of the persons indicated by the Customer in the Order. An additional charge may be made for the provision of a hard copy of the results.
8. Transfer of Property and Records Retention
8.1 Title in any analysis results, products, equipment, software or similar supplied by Eurofins to the Customer will remain with Eurofins until all invoices in respect thereof have been paid by the Customer in full, and until such full payment, the Customer shall have no ownership or property rights therein. In addition, even if Eurofins has accepted and begun to fulfil an Order, Eurofins has the right at any time to stop processing that Order and to stop doing any work for a Customer if that Customer is late in paying any amount due to Eurofins, whether for that or any other Order.
8.2. Eurofins will retain electronic copies of all written and recorded information produced from any Services for a period of one (1) year, whereas, all hard copies of any written and recorded information producred from Services (including but not limited to laboratory notebooks, descriptions, methods and procedures) on-site for a period of three (3) months (the “Retention Period”) following completion of the Services. After expiration of the applicable Retention Period, Eurofins may destroy any records pertaining to completed Services or store the information for an additional fee. If Customer requests the return of Customer Materials prior to the end of the relevant Retention Period, Eurofins shall return them to Customer at Customer’s sole cost and risk. Customer shall pay Eurofins any additional fee for any such storage beyond retention time.
9. Limited Warranties and Responsibilities
9.1 Orders are handled in the conditions available to Eurofins in accordance with the current state of technology and methods developed and generally applied by Eurofins. Analyses, interpretations, assessments, consulting work and conclusions are prepared with a commercially reasonable degree of care but Eurofins cannot guarantee that these will always be correct or absolute. This limited warranty expires six months after the delivery date of the final report or completion of study, if the acknowledgement of the Order does not specifically state otherwise. In all cases, the Customer must independently verify the validity of any results, interpretations, assessments and conclusions supplied by Eurofins, if it wishes to rely on the same in respect of matters of importance and shall do so at its own risk.
9.2 Each analytical report relates exclusively to the sample analyzed by Eurofins. If Eurofins has not expressly been mandated and paid for the definition of the sampling plan (including which samples of which raw materials and finished products and at which frequency should be analysed) and the definition of the precise range of analysis to be performed, or if the Customer has not followed Eurofins recommendations, Eurofins shall not bear any responsibility if the sampling plan and/or the range of analysis to be performed prove to be insufficient or inappropriate.
9.3 Unless explicitly agreed in writing by all Parties, the contractual relationship shall be exclusively between the Customer and Eurofins. There shall be no third party beneficiary or collateral warranty relating to any Order, and the Customer shall indemnify and hold Eurofins harmless from and against any and all third party claims in any way relating to the Customer or to the Order by the Customer.
10. Limitation of Liability
10.1 In no event shall either Party be responsible for (i) any indirect, consequential, incidental, punitive, non-compensatory or special damages (including without limitation damages for lost profits or revenue, loss of use, business interruption, loss of information, or for the procurement of substitute services) of the other Party or of any third party, even if such Party has been advised of the potential for such damages and whether such damages arise in contract, negligence, tort, under statute, in equity, at law or otherwise. In no event shall Eurofins be liable for any damages in excess of the aggregate amount of fees (excluding any pass through costs) paid under the applicable Order for the Services giving rise to the claim or, if less, $250,000. Furthermore, no action arising out of or relating to this Agreement or the Services provided under any Order may be brought by either Party more than twelve (12) months after the accrual of the cause of action.
10.2 The foregoing limitations of liability shall not be interpreted to, or operate to, reduce or limit the obligation or liability of Customer to pay for Services rendered and costs incurred as provided in this Agreement and the applicable Order.
11. Repeated Analysis
11.1. In the event that Services do not meet their applicable specifications or performance requirements set forth in this Agreement or in any Order the applicable Order due to Eurofins’ negligence, Customer shall provide Eurofins written notice thereof and reasonably document the basis therefor its determination within ten (10) business days after the Customer receives the final results and Eurofins shall, at Customer’s sole and exclusive option, and as Customer’s sole and exclusive remedy, either (a) promptly correct the performance Services, at no additional expense per the above. If the test results warrant repeat of the test, then the Customer must formally document such request in writing, which must be agreed to by Eurofins before repeated analysis will be conducted. The cost incurred for the repeated analysis will be documented in separate Order or other appropriate contract before the work will be conducted. Furthermore, a repeated analysis will be possible only if Eurofins has a sufficient amount of the original sample or material on hand when it receives the Customer’s objection. Otherwise the Customer will be required to pay all costs, including sampling, transportation, analytical and disposal costs for the repeat analysis.
12. Term, Termination and Amendment
12.1. These Terms and Conditions shall commence on the date an Order is accepted by both Parties and shall continue until the Order is completed. Eurofins or the Customer may terminate an Order upon thirty (30) days written notice to the other Party for any reason. If the Customer exercises this early termination right, the Customer agrees that Eurofins will be paid for all portions of the Order actually performed up to the date of termination. If Eurofins exercises this early termination right, then it will refund any monies paid to it for the Order. No addition to or modification of these Terms and Conditions shall be effective unless made in writing and signed by authorized representatives of both Parties.
13. Force Majeure
13.1. Eurofins shall not be held liable for delays, errors, damages, delays or other problems caused by events or circumstances which are unforeseen or beyond Eurofins’ reasonable control, such as strikes, supplier delays, shortages of raw materials, government orders, pandemic, or acts of God, or other events which are beyond the reasonable control of Eurofins, or which result from compliance with governmental requests, laws and regulations. The performance schedule, if any, shall be adjusted to account for any such delays. Eurofins shall use commercially reasonable efforts to resume performance under this Agreement as soon as possible, and if it has not performed under this Agreement due to a force majeure event for more than thirty (30) days, the other Party may terminate the applicable Order or these Terms and Conditions without further cost or liability in addition to any other applicable termination rights.
14. Confidentiality & Processing of Customer Data
14.1 All confidential and/or proprietary information and materials which are disclosed by one Party to the other hereunder, including but not limited to, scientific, technical, financial, trade or business information in verbal, written, graphic, electronic, photographic, recorded, prototype, sample, data, analysis results, service reports, or composition of products and software will be considered “Confidential Information”. The Parties acknowledge that an exchange of Confidential Information is necessary in order to enable them to engage in the Order. With respect to such Confidential Information, the receiving Party agrees to cause its officers, employees, agents, or other representatives to hold in strict confidence all Confidential Information obtained from the disclosing Party and/or its officers, employees, agents and representatives, and not to use, disclose, or permit access to such Confidential Information for any purpose other than as may be required or permitted to perform any obligation under these Terms and Conditions.
14.2 The obligations of confidentiality will not apply to Confidential Information which the receiving Party can demonstrate falls within any of the following categories:
(a) Information that is or becomes available to the public at or after the date of the acceptance of this Order by both Parties through no fault of the receiving Party;
(b) Information that as of the time of disclosure to the receiving Party was already known to and in the lawful possession of the receiving Party as evidenced by written records;
(c) Information obtained by the receiving Party after the date of the acceptance of this Order by both Parties from a third party lawfully in possession of and having the right to disclose the same;
(d) Information which is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information; or
(e) Information that is required to be disclosed pursuant to operation of law provided, however, that the receiving Party shall notify the disclosing Party of such request prior to disclosure and allow the disclosing Party to take appropriate action as the disclosing Party deems necessary.
14.3 The receiving Party shall return or destroy, at the disclosing Party’s option, all Confidential Information disclosed by the disclosing Party, provided, however that the receiving Party may retain one (1) copy of any such Confidential Information for legal archival purposes.
14.4 Notwithstanding the above, Eurofins’ obligation to keep Customer’s Confidential Information secret is subject to Eurofins’ rights set forth in Section 8.2 and the right to use it in order to demonstrate its entitlement to payment for services rendered.
14.5 Notwithstanding anything to the contrary in this Agreement, the Customer (a) remains responsible for any consequences due to the divulgence of results to a third party and any reliance of such third party on such results and (b) hereby agrees to indemnify the Eurofins Indemnified Parties against any liability which the Eurofins Indemnified Parties may incur as a result of such divulgence or any such third party reliance provided that Eurofins has complied with its obligations under this Agreement. Eurofins will not use the Customer’s name in connection with any publication or promotion without the Customers prior written consent. Customer will give Eurofins notification when using Eurofins name in connection with any publication or promotion . However, Customer shall have the right to disclose and use Eurofins’ name in order to satisfy regulatory requirements.
14.6 The Parties agree that each shall obtain the other’s prior written approval before using the other’s name, logos and/or marks in any form of publicity. Such obligation shall not apply to disclosures which either Party is required by applicable law to make, provided that the disclosing Party shall notify the other Party of any such disclosure prior to such disclosure.
15. Intellectual Property
15.1 Eurofins hereby acknowledges and agrees that any and all Intellectual Property that is owned or controlled by Customer as of the date hereof, all Customer Materials and all modifications or improvements thereto (“Customer Background IP”) are the sole and exclusive property of Customer. Customer hereby grants Eurofins a limited license to use Customer Background IP and Customer Materials for the purpose of carrying out the Services. Except as stated herein, Customer shall own all rights in any Results, including any reports generated by Eurofins that are derived from the Services.
15.2 Customer hereby acknowledges and agrees that any and all Intellectual Property that is owned or controlled by Eurofins as of the date hereof, or that is developed, conceived or reduced to practice outside of the performance of Services by Eurofins, and all modifications or improvements thereto (“Eurofins Background IP”) are the sole and exclusive property of Eurofins. Customer hereby acknowledges and agrees that any and all Intellectual Property that is developed, conceived or reduced to practice during the term by representatives of Eurofins in the performance of the Services and that is (i) within the field of the Eurofins Background IP, and (ii) does not rely on or incorporate Customer Materials or Customer Confidential Information and (iii) is not developed or created at the express request of Customer pursuant to an Order (collectively, “Eurofins IP”), is not part of the Results, and Eurofins IP shall vest in and be the sole and exclusive property of Eurofins. Customer shall be allowed to use the Eurofins Background IP and the Eurofins IP, at no cost to Customer, to the extent they are incorporated into the Results and are necessary for the exploitation of the Results.
15.3 Eurofins, on behalf of itself and its personnel, hereby assigns to Customer all of its rights, title and interest in and to Results, including all patents, copyrights and other intellectual property rights therein and all rights of action and claims for damages and benefits arising due to past and present infringement of said rights as provided herein. Eurofins further agrees that it shall, upon request of Customer and at Customer’s cost and expense, promptly execute any and all applications, assignments, and other instruments which Customer shall deem necessary in order to apply for, obtain, secure and maintain intellectual property rights for said Results.
15.4 “Intellectual Property” means all inventions, discoveries, trade secrets, know-how, improvements, methods, systems, software programs, practices, procedures and processes, and proprietary materials including, but not limited to, structural and functional information and other data repository, formulations and techniques, whether or not patentable or copyrightable.
16 Indemnification
16.1 Eurofins agrees to defend, indemnify and hold harmless Customer and its directors, officers and employees (collectively, “Customer Indemnified Parties”) from and against any and all losses, damages, liabilities, expenses and costs, including but not limited to reasonable legal expenses and attorney’s fees (“Losses”) to which the Customer Indemnified Parties may become subject as a result of any claim, demand, action or other proceeding by any third party to the extent such Losses arise from or relate to the gross negligence or willful misconduct of Eurofins or any of its Affiliates or any of their respective employees or agents, except to the extent that such Losses are attributable to the negligence or willful misconduct of a Customer Indemnified Party or breach by Customer of any term of this Agreement.
16.2 Customer agrees to defend, indemnify and hold harmless Eurofins and its directors, officers and employees (collectively, “Eurofins Indemnified Parties”) from and against any and all Losses to which the Eurofins Indemnified Parties may become subject as a result of any claim, demand, action or other proceeding by any third party to the extent such Losses arise from or relate to (a) an allegation that Eurofins’ use of Customer Materials or any technical information, instructions, materials, processes or know-how specifically provided by Customer to Eurofins for the performance of the Services constitutes an infringement or misappropriation of intellectual property rights of such third party, (b) the performance of the Services or (c) the gross negligence or willful misconduct of Customer or any of its Affiliates or any of their respective employees or agents, except in each case to the extent that such Losses are attributable to the negligence or willful misconduct of a Eurofins Indemnified Party or breach by Eurofins of any term of this Agreement.
16.3 Notwithstanding anything to the contrary in this Agreement, Eurofins shall have no indemnity obligation concerning Customer’s, Customer’s Affiliates or any third party’s use of the Results, data or other information provided to Customer by Eurofins arising from Eurofins’ performance under this Agreement provided that Eurofins has complied with its obligations under this Agreement. There shall be no third party beneficiary relating to any Order, and the Customer shall indemnify and hold Eurofins harmless from and against any and all third party claims relating to the Customer use of the Results.
16.4 Indemnification Process. If either Party receives written notice of any third party claim which may give rise to a right to indemnification from the other Party hereto, the Party seeking indemnification (the “Indemnified Party”) shall give written notice thereof to the other Party (the “Indemnifying Party”) setting forth the nature and amount of the claim and the basis of the claim for indemnification. The Indemnifying Party may, upon written notice to the Indemnified Party within thirty (30) days of its receipt of the claim for indemnification, elect to assume defense of the claim; provided, however, that the Indemnifying Party may not, in defense of such claim, consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party which does not include, as an unconditional term thereof, a full release of the Indemnified Party in respect thereof. If the Indemnifying Party elects to assume the defense of the third party claim, the Indemnified Party may retain legal counsel at its own expense to participate in the defense; provided, however, that the Indemnifying Party shall be liable to the Indemnified Party for any legal or other expenses incurred by the Indemnified Party in connection with its subsequent assumption of the defense at the request of the Indemnifying Party. If the Indemnifying Party does not elect to assume control of the defense, the Indemnified Party will afford the Indemnifying Party an opportunity to participate in such defense, at the Indemnifying Party’s own cost and expense, and will not settle or otherwise dispose of the claim without the consent of the Indemnifying Party, which such consent shall not be withheld unreasonably.
17. Representations and Warranties.
17.1 Each Party hereby represents and warrants to the other Party that: (i) it has full power and authority to enter into the Order; (ii) the Order and these Terms and Conditions have been duly authorized; (iii) the Order and these Terms and Conditions are binding upon it; and (iv) it is not subject to any conflicting obligation or legal impediment that might preclude or interfere with its performance of its obligations under the Order or these Terms and Conditions and that no such obligations will be incurred or permitted in the future without the prior written approval of the other Party
18. Disclaimer and Miscellaneous
18.1 ALL TERMS, CONDITIONS AND WARRANTIES (INCLUDING ANY IMPLIED WARRANTY AS TO MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) AS TO THE MANNER, QUALITY AND TIMING OF THE TESTING SERVICE AND RESULTS, EQUIPMENT, PRODUCTS OR SOFTWARE SUPPLIED BY EUROFINS ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EUROFINS CONTAINED IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE.
18.2 The Customer warrants that for the term of these Terms and Conditions, in relation to any Economic Sanctions imposed by the United Nations, the European Union, the United States of America or any other country, that:
(a) is not the target of any Economic Sanctions;
(b) to the best of its knowledge, it is not controlled or beneficially owned by any person subject to Economic Sanctions;
(c) it shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing Customer shall not (i) directly or indirectly export, re-export, trans ship or otherwise deliver the Services or any portion of the Services in violation of any Economic Sanctions Law, or (ii) broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Law;
(d) it is not engaged in any proceedings or subject to any investigations from authorities for the alleged breachof any Economic Sanctions Law.
18.3 The Customer shall indemnify Eurofins against any losses, liabilities, damages, fines, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, Customer as a result of any breach of clause 18.2 by the Customer. Without affecting any other right or remedy available to it, Eurofins may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer commits a breach of clause 18.2, and the Customer shall not be entitled to claim compensation or any further remuneration.
For the purpose of this clause:
“Economic Sanctions” means any economic sanctions, restrictive measures or trade embargoes adopted by the UN Security Council, the European Union, the United States of America or any other sovereign government.
“Economic Sanctions Law” means any law, regulation or decision enacting Economic Sanctions.
18.4 Should a court waive, limit or hold to be invalid, illegal or unenforceable any part of these Terms and Conditions, all other parts shall still apply to the greatest extent possible.
18.5 Failure by either Eurofins or the Customer to exercise the rights under these Terms and Conditions shall not constitute a waiver or forfeiture of such rights.
18.6. Eurofins certifies that it has not been debarred under sections 306(a) and (b) of the Federal Food, Drug and Cosmetic Act.
part, or any interest therein, without prior, written consent of the other Party; provided however, that such consent shall not be unreasonably withheld, conditioned or delayed. In addition, neither Party may assign the Order to any affiliated Party or to the purchaser of all or substantially all of its business related to the performance of the Order without such prior consent. Subject to the forgoing, the Order and these Terms and Conditions shall be binding upon and inure to the benefit of the successors in interest of Eurofins and the Customer.
18.6 Any notice required or permitted to be given hereunder by either Party shall be in writing and shall be deemed given on the date received if delivered personally, by reputable overnight delivery service, electronic delivery or facsimile, or three days after the date postmarked if sent by registered or certified mail, return receipt requested, postage prepaid to the such Party.
19. Governing Law/Jurisdiction
19.1The construction, validity and performance of the Order and these Terms and Conditions shall be governed by the laws and the commercial courts of the State of Delaware, USA, which shall have exclusive jurisdiction. In the event of any conflict between this English language version of theses Terms and Conditions and any subsequent translation into any other language, this English language version shall govern and control.
19.2 Any controversy, claim or dispute that may arise out of this Agreement shall first within 60 (sixty) days from the date said controversy, claim or dispute is first submitted the Parties shall initiate mediation upon written notice to the other Party. On such initiation, both Parties shall be obligated to engage in a mediation proceeding under the then current Commercial Arbitration Rules and Mediation procedure for mediation of business disputes, except that specific provisions of this section shall override any inconsistent provisions of the procedure. Any dispute or claim that remains unresolved after initiation of a mediation procedure pursuant to the above paragraph may be submitted by either Party to the courts of Brussels, Belgium in accordance with this section herein. Any dispute, controversy or claim between the Parties arising out of or in connection with this Agreement shall be settled amicably between the Parties and, in case the Parties fail to reach an agreement, shall be finally settled by litigation.
Updated 2021.05.24
APPENDIX 1
DESCRIPTION OF BIOPRINT® SERVICES
Phase A. Customer’s compound BioPrint® profile
Eurofins Cerep will profile Customer’s Materials on BioPrint® assays and will provide Customer with the report including results of such profile (Customer compound profiling data).
Phase B. BioPrint® Analysis
For the purpose of the present section “BioPrint® Analysis” shall mean interpretation of Customer’s compound profiling data to identify the nearest neighbors to Customer’s compound and associated ADRs (adverse drug reactions).
B.1. Nearest neighbors to Customer’s compound
Should interpretation of Customer’s compound profiling data (as described above) be impossible to perform (level of activity, absence of neighbors…), Customer will be informed, and no charges will be associated to the Phase B.
Should a BioPrint® Analysis be performed as a result of interpretation of Customer’s compound profiling data, Customer will receive a report containing (the “Phase B Report”):
the chemical name and the structure (generic name if available) of the five nearest neighbors to Customer’s compound;
the distance between Customer’s compound and its five nearest neighbors (Cluster distances). Cluster distances to other compounds are also included in the report (without the name of such compounds).
B.2. ADR reports
The Phase B Report will also include:
the description of ADRs associated to Cerep assays on which Customer’s compound is active (Spearman coefficient/ risk ratio are generated for each ADR);
the description of ADRs of the five nearest neighbors identified.
Phase C. BioPrint® Data
Customer may elect to purchase datasets containing information on neighbors identified in Phase B.
Purchased data will be incorporated into the Phase B Report.
Three datasets are available for purchase (at Customer’s sole choice) within the frame of a BioPrint® Analysis:
a BioPrint® Full Profile (which includes Bioprint® Pharmaco and BioPrint® ADMETox mentioned below),
a BioPrint® Pharmaco (pharmacological data only),
a BioPrint® ADMETox (ADMETox data only).
Purchase of a BioPrint® dataset involves delivery of:
neighbors profiling data,
ADR report on Customer’s compound and neighbor compounds,
A set of different presentations and figures (giving comparative views on inhibition percentage and IC50s from Customer’s compound and neighbors).
APPENDIX 2
BIOMAP® SERVICES AND CUSTOM ASSAY DEVELOPMENT (CAD) SERVICES
“BioMAP® Profiling” means screening, profiling and assaying of Customer Compounds using BioMAP Systems, resulting in a set of quantitative readout measurements (“BioMAP® Profiles”), and “BioMAP® Data Analysis” means analysis of BioMAP® Profiles using the BioMAP® Platform. “BioMAP® Platform” includes any and all proprietary methods or materials used by Eurofins to screen, assay or profile compounds, including, without limitation, Eurofins’s proprietary database of profiles of reference compounds and related data (“BioMAP® Database”); computational analytical tools and user interfaces (“BioMAP® Viewer”); and human primary cell-based assays (“BioMAP® Systems”).
“Eurofins Reference Data” means BioMAP® Profiles of compounds, biologics, or other reference agents in BioMAP Database generated by Eurofins prior to the execution date of the applicable Quote or Agreement.
“Custom Assay Development Services or CAD Services” means any services requested by Customer and categorized as custom services performed by Eurofins for Customer utilizing PathHunter or BioMAP® technology platforms.
“Customer Compounds” shall refer to any and all substances, including without limitation, any compounds, antibodies, or proteins, and all information concerning the stability, storage and safety requirements of such materials as set forth in the Compound Shipping Table provided by the Customer to Eurofins pursuant to this Agreement.
“Compound-Related Results” means the data and analyses generated by BioMAP® Profiling of Customer Compounds, and all other information related to Customer Compounds arising from the performance of Services, including by way of example BioMAP® profiles and quantitative readout measurements from testing the Customer Compounds.
“Deliverables” means novel cell pools, clones and other such deliverables developed or generated during the performance or as a result of CAD Services.
“Reference Compound” means a compound listed in the accompanying Table to the Quote or Agreement that may or may not be proprietary to Customer, but that may be provided to Eurofins for the purpose of comparison with “Customer Compounds” or generating a Profile. Data generated from Reference Compounds become part of the BioMAP® Reference Data and will be owned exclusively by Eurofins.
“Reports” shall refer to written compilations of Compound-Related Results, each of which shall be titled “Report”, that arise from Eurofins’s performance of Services.
“Intellectual Property”
Customer acknowledges that Eurofins may have previously performed BioMAP® Profiling of compounds identical to one or more Customer Compounds and may do so in the future; nothing in this Agreement shall be deemed to restrict or limit Eurofins’s ability to screen and profile compounds from any source or to use or grant the right to use the results of such screening and profiling to third parties; provided, however, that data generated under this Agreement relating to the Customer Compounds or Customer Confidential Information shall not be used for such purposes. Notwithstanding the foregoing, there shall be no restrictions on Eurofins’s use of data relating to Reference Compounds as defined above. As between the Parties, the Customer shall own any IP Rights relating to the use of any proprietary Customer Compound, and Eurofins shall own any IP Rights created by its employees or agents relating to the BioMAP® Platform and data generated using Reference Compounds (“Eurofins IP Rights”). Save as otherwise expressly stated herein, no rights, licenses or obligations are granted by, or to be implied from, this Agreement. Nothing in this Agreement shall be deemed to grant the Customer a license to practice any Eurofins IP Rights, including without limitation, the use of any BioMAP® Systems as defined above.
All rights, title and interest in and to Deliverables developed or generated in the performance of CAD Services conducted by Eurofins’s employees, agents, consultants or other representatives, either solely or jointly with employees, agents, consultants or other representatives of Eurofins, including all patent and other intellectual property rights therein, will be owned solely by Eurofins and its parent.
Publication. Customer may publish any Compound-Related Results, subject to the limitation that, if such publication contains Eurofins Reference Data or Eurofins Confidential Information, then Customer must have prior written consent from Eurofins. Customer shall use reasonable efforts to identify Eurofins as the provider of any Compound-Related Results in any publication disclosing the same. Eurofins shall have no right to disclose any Customer Confidential Information without the Customer’s prior written consent.
These Deliverables may be covered by issued US and/or foreign patents, patent application and subject to Limited Use Label License. Please visit www.discoverx.com/legal or see user’s manual for limited use label license and trademark information. For Research Use Only. Not for use in diagnostics procedures.”
APPENDIX 3
Full Time Employee (FTE) Services
Definition
“Additional Materials” means a dedicated material, precursor or reagent, purchased by Eurofins in the performance of the Services whether or not specifically described in any Order. For the avoidance of doubt, any specialist chromatography and HPLC columns specifically procured in the performance of the Services shall be considered as an Additional Material;
“Advance Fee” means any upfront payment to be made in respect of the Services;
“Fee” means any and all payments to be made in consideration of the Services outlined in the particular Order;
“Labour Rate or FTE Rate” means the labour rate, per hour, at which the Services, performed specifically under a Time and Materials basis shall be provided, in each case as set out in the particular Order, which may be amended from time to time. The FTE (full time equivalent) Rate includes all personnel compensation and benefits, associated overhead, allocated facilities and utilities, and other costs and expenses incurred by Eurofins employees and contractors engaged in the performance of the Services including, the cost of general laboratory consumables and reagents. For the avoidance of doubt the FTE Rate does not include any costs attributable to waste, shipping, Additional Materials and any extraordinary single chemical or supply expenses to the extent such costs are separately identified in the particular Order;
“Outsourced Studies” means any study that may be requested, from time to time by Eurofins and performed by a third party or Affiliate in support of the Services, in each case as set out in the particular Order. Such studies include but are not limited to certain ADME, DMPK and X-ray crystallography determinations where not available at Eurofins;
“Payment Schedule” means the schedule of payments as set forth in an Order;
“Project Leader” means an employee appointed by and from each Party who shall act as project leader for the Services in respect of scientific matters relating to the Services, in each case as set out in the particular Order or in the case of Eurofins as notified to Customer on an as required basis during the course of the Services;
“Reconciliation” means where applicable, the accounting process to be performed at the end of each calendar month in order to determine payments due for Services provided or reimbursed in the event of an overpayment;
“Shipping” means the transportation of work products from Eurofins to one or more destinations as set out in the particular Order or as otherwise agreed by the Parties, in each case such transportation to be in accordance with prevailing practices and legislation;
“Time and Materials” means a project whereby the Parties agree on a Fee for the project based on the FTE Rate and materials as specified in an Order;
Request of FTE Services
1.1 No Party shall have any obligation under an Order until all Parties to the Order have executed the Order. Eurofins will provide Full Time Employee (“FTE”) to Customer as set forth in each Order. For purposes of the Order, an FTE shall mean a fully allocated chemist or biologist employed by Eurofins.
1.2 Eurofins shall ensure that each FTE assigned to the project under a given Order has the appropriate level of expertise, experience, training, and, where applicable, licenses necessary to perform the project.
1.3 Orders are handled in the conditions available to Eurofins in accordance with the current state of technology and methods developed and generally applied by Eurofins. Analyses, interpretations, assessments, consulting work and conclusions are prepared with a commercially reasonable degree of care. This limited warranty expires six (6) months after the delivery date of the final report or completion of study.
2. Payments
2.1 Fee for Service. The Parties agree and provide for provision of Services on a fee-for-service basis with payments being made in accordance with the Payment Schedule set forth in the applicable Order.
2.2 Fixed Fee Services. In the case of Services conducted under a Fixed Fee basis, the Payment Schedule, including any Advanced Fee and costs of Additional Materials will be detailed in the Order.
2.3 Time and Materials or FTE based Services. In the case of Services conducted under a Time and Materials or FTE Services, the Payment Schedule, including any Advanced Fee, Outsourced Studies and Shipping costs will be fully detailed in the Order. Upon execution of a Order for any Time and Materials or FTE Services, Eurofins shall issue an invoice to Customer for an advance payment as set out in the Order. Upon utilisation of any Advanced Fee payment and then at the end of each calendar month, Eurofins will perform and send to Customer a detailed monthly Reconciliation of Fees due for FTE Services, Additional Materials, Outsourced Studies and Shipping costs accrued during that calendar month.
PROJECT LEADERS
3.1 Role of Project Leaders. For each executed Order, each Party shall designate a Project Leader as that Party’s primary contact, who shall;
manage and coordinate the day-to-day communications between the Parties;
manage and coordinate the day-to-day activities of their respective Party’s staff engaged in the Service;
review and evaluate progress and problem solving activities; and
have such other responsibilities as may be assigned to the Project Leader pursuant to this Agreement or as may be mutually agreed upon by the Parties from time to time;
and
in the case of the EUROFINS Project leader, to coordinate the outsourcing of any studies or parts of the Services to its Affiliates or subcontractors as agreed by the Parties.
For the avoidance of doubt, the Project Leaders shall not have the authority to amend or modify any terms or conditions of this Agreement or Order.
3.2 Project Communications and Reporting. The Project Leaders and their teams shall liaise and provide progress reports at such frequencies and using such methods and formats as shall be mutually agreed between the Parties and as shall be specified in any Order.
3.3 Non-Solicitation. During the term of this Agreement and for a period of two (2) years after the Terms and Conditions have terminated or expired, (regardless of the reason for termination), Customer shall not directly or indirectly persuade or entice, or attempt to persuade or entice any employee or consultant of Eurofins or any of its Affiliates to terminate his/her employment or service relationship with Eurofins or any of its Affiliates, participate in any manner in the formation of any competing business or to do any other act that is inconsistent with the interests of Eurofins or any of its Affiliates.
3.4 Intellectual Property
Customer shall be the exclusive owner of the results and the synthesis products (the “Results”) originating from the Services. To the extent that such rights are assignable in advance, Eurofins hereby grants and assigns to Customer all right interest and title in and to the Results; to the extent that such Results cannot be prospectively assigned, Eurofins agrees to assign the Results to Customer as and when they are created, at the request of the Customer. If requested by Customer, and at the expense of Customer, Eurofins shall make commercially reasonable efforts to assist Customer to obtain patents or other relevant protection or registrations for any of the Results. In the event that Customer shall file a patent application or otherwise seek to maintain and perfect its proprietary interest in any of the Results, Eurofins agrees to cooperate with Customer in such an endeavour, at Customer’s expense, and to review, have reviewed, execute and/or have executed patent applications, assignments, declarations and any other papers that Customer may reasonable consider necessary or helpful in the prosecution thereof. The entire control, prosecution, and conduct of any such patent application filed by Customer shall be at the sole expense and responsibility of Customer.
Eurofins is and shall continue to be the sole owner of all of its pre-existing concepts, inventions, improvements, designs, programs, formulas and know-how.
APPENDIX 4
Integrated Drug Discovery (IDD) Services
Integrated Drug Discovery Services. Eurofins and Customer may enter into an Order for IDD Services, which will include participation of Eurofins, its Affiliates and subcontractors in a single project headed by a single team under a Project Leader.
Conflicts. Eurofins acknowledges and agrees that, during the term of any Order, as defined therein, it shall refrain from working on any services for third parties whereby the objectives or scope directly overlaps or conflicts with that of the Services, without the prior written consent of Customer. Notwithstanding the above, Customer understands and hereby acknowledges that Eurofins or its Affiliates, either alone or with a third party, may have in the past, may currently be, or may in the future be engaged in the research, development of compounds or technologies within the same or similar research, technological or therapeutic area as that of the Services.
Accordingly, nothing in this Agreement or any Order will be construed by implication or otherwise as preventing Eurofins or its Affiliates, during the term of this Agreement, any Order, or thereafter, from (i) either alone or with a third party, engaging in research and development activities relating to the same technological or therapeutic area as the Services, or (ii) evaluating compounds or technologies owned or controlled by a third party relating to the same research, technological or therapeutic area as the Services, provided that, in each case, Eurofins and its Affiliates does not use any Confidential Information of Customer in a manner inconsistent with the terms of this Agreement.
Project Leaders. For each executed Order, each Party shall designate a Project Leader as that Party’s primary contact who shall:
manage and coordinate the day-to-day communications between the Parties;
manage and coordinate the day-to-day activities of their respective staff engaged in the Service;
review and evaluate progress and problem solving activities; and
have such other responsibilities as may be mutually agreed upon by the Parties from time to time; and
in the case of the Eurofins Project Leader, to coordinate the outsourcing of any studies or parts of the Services as agreed by the Parties. For the avoidance of doubt, the Project Leaders shall not have the authority to amend or modify any terms or conditions of this Agreement or any Order.
Project Communications and Reporting. The Project Leaders and their teams shall liaise and provide progress reports at such frequencies and using such methods and formats as shall be mutually agreed between the Parties and as shall be specified in any Order.