FERA SCIENCE LIMITED – provision of eDNA Services
The provisions of this Agreement shall apply to the performance of eDNA Services by Fera to the exclusion of all other terms and conditions, including any terms and conditions which Customer may purport to apply under any purchase order or similar document. Customer irrevocably accepts the content of this Agreement by ordering eDNA Services as set out herein.
PART A – SPECIFICATION
“Analytical Services” means the performance of a laboratory analytical services to test for the presence of environmental DNA of great crested newt in Samples;
“eDNA Services” means collectively the delivery of a Kit and performance of Analytical Services;
“Kit” means the kit provided by Fera to Customer to collect Samples, consisting of: collection ladle, ‘whirl-a-pack’ bag, gloves, box, 6x 50ml tubes, sterile pipette, re-sealable bag, sampling instructions and label;
“Protocol” means the method for performing analysis of environmental DNA for great crested newts published by Natural England: Biggs et al, (2014) ‘Analytical and methodological development for improved surveillance of the Great Crested Newt, Appendix 5. Technical advice note for field and laboratory sampling of great crested newt (Triturus cristatus) environmental DNA’, Freshwater Habitats Trusts, Oxford;
“Sample” means a sample of pondwater collected by Customer; and
“Web Portal” means the website maintained by Fera through which Customer electronically orders eDNA Services.
2. SCOPE OF SERVICES
2.1. In response to orders placed by Customer on the Web Portal, Fera will provide Kits and conduct Analytical Services on Samples returned by Customer.
2.2. Each order placed on the Web Portal is deemed to be a separate Agreement.
2.3. eDNA Services are available subject to availability, and (except as otherwise expressly agreed by Fera) eDNA Services will be available only during the period of April to July (inclusive) of each year.
2.4. The performance of eDNA Services is subject to the Terms and Conditions displayed at Part B of this Agreement.
3. ORDER PROCESS
3.1. Customer shall place orders for eDNA Services through the Web Portal by selecting the required numbers of Kits, the week(s) during which it wishes Analytical Services to commence, and what transport options (if any) it wishes Fera to provide.
3.2. The price for each Kit will be calculated in accordance with the pricing schedule at Appendix One (below). Except as otherwise expressly agreed in writing by Fera, any discount(s) to which the Customer is eligible for ordering higher volumes of Kits will be calculated on a per-Order basis, and not cumulatively over multiple Orders.
(a) Delivery. Where Customer has requested during the order process that Fera arranges for the delivery of Kits, then Fera will arrange for a courier to supply Kits to the address (or addresses) identified by the Customer during the ordering process; otherwise Customer remains responsible for collecting the Kits from Fera’s Sand Hutton facility at its own cost and expense and by prior arrangement with Fera.
(b) Customer remains responsible for arranging the delivery of its Samples to Fera’s Sand Hutton facility at its own cost and expense.
3.4. Provided that Samples are returned by Customer in accordance with paragraph 4.3, Fera shall perform the Analytical Services and provide the Results as follows:
(a) standard service: within ten (10) Working Days of the Monday of the week for which Customer has booked its testing slot in respect of that Sample; or
(b) fast track service: within five (5) Working Days of the Monday of the week for which Customer has booked its testing slot in respect of that Sample.
4. CUSTOMER SPECIFIC UNDERTAKINGS
4.1. Customer shall order eDNA Services using the Web Portal.
4.2. Customer shall ensure that Samples are collected, handled, stored and transported in accordance with the Protocol, the instructions contained in the Kit and Fera’s written instructions.
4.3. Customer shall provide its Samples to Fera as soon as possible after collection, and in any event no later the Friday immediately prior the week for which Customer has booked its testing slot in respect of that Sample.
5. FERA SPECIFIC UNDERTAKINGS
5.1. For each Order for eDNA Services, Fera will supply the required number of Kits (in accordance with paragraph 3.3 above), reserve the slot(s) requested by Customer for the performance of Analytical Services, and perform the Analytical Services on Samples provided by Customer.
5.2. Fera will supply the consumables, personnel, laboratory resources and equipment required to conduct the Analytical Services.
5.3. Prior to the performance of Analytical Services, Fera will store Samples returned by Customer in accordance with the Protocol.
5.4. Fera will conduct Analytical Services in accordance with the Protocol and within the timescales stated at paragraph 3.4 above.
5.5. Following completion of the Analytical Services:
(a) Fera will issue to Customer a Report containing the results of the Analytical Services in .pdf format, indicating a result for each Sample tested as follows:
(i) ‘negative’ – the Sample did not contain DNA of great crested newt; or
(ii) ‘positive’ – the Sample contains DNA of great crested newt; or
(iii) ‘inconclusive’ – DNA from great crested newt has not been detected, and testing indicates that the Sample has degraded beyond acceptable limits or contains analytical reaction inhibitors such that it is not possible to issue either a ‘positive’ or ‘negative’ result.
(b) Fera will issue an invoice in respect of the eDNA Services conducted during the course of a single calendar month on or around the first Working Day of the subsequent month; and
(c) Fera will (at its sole discretion) either (i) destroy any remaining Sample material; or (ii) arrange for the ongoing storage of remaining Sample material (at Fera’s cost and expense).
6. ADDITIONAL TERMS
6.1. Fera is under no obligation to allow the Customer’s Representatives or sub-contractors to witness the eDNA Services being carried out.
6.2. Unless Customer provides notice of rejection of the Services in accordance with clause 13 (Warranty) of the Agreement, Results will be deemed to be accepted by Customer five (5) Working Days after delivery.
PART B: TERMS AND CONDITIONS
1. DEFINITION AND INTERPRETATION
The definitions and interpretations contained in Schedule 1 (Definitions and Interpretation) shall apply to this Agreement.
2.1 In consideration of receipt of the Price, Fera agrees to provide the Deliverables to the Customer in accordance with the Agreement.
2.2 No order for the supply of Deliverables is binding on Fera unless and until it has been accepted by Fera in writing.
2.3 Nothing in the Agreement implies that Fera will provide the Deliverables or goods and/or services of a particular type to the Customer exclusively.
2.4 Unless stated to the contrary in the Specification:
(a) Fera will deliver Deliverables Ex Works at its Sand Hutton facility (Incoterms 2015, for which purposes Fera shall be construed as the ‘seller’ and Customer as the ‘buyer’);
(b) Fera will perform the Services at its Sand Hutton facilities;
(c) time shall not be of the essence in relation to the provision of the Deliverables by Fera to the Customer; and
(d) stated delivery times are an estimate only and, subject to the other provisions of this Agreement, Fera will not be liable for any Loss caused directly or indirectly by any delay in the delivery of the Deliverables (or part thereof); and nor will any such delay entitle the Customer to terminate or rescind the Agreement in whole or in part.
Customer’s Representatives at Fera’s premises
2.5 If Customer Representatives attend Fera’s premises, then in respect of such Representatives:
(a) Customer shall remain responsible for their salaries, expenses, and other associated costs;
(b) Customer will procure that they are informed of the provisions of the Official Secrets Act and agree to abide by its provisions;
(c) Customer will procure that they comply with Fera’s security, health and safety, and other relevant procedures;
(d) Fera may at any time at its absolute discretion refuse to accept or continue to accept any particular individual on its premises; and
(e) Fera shall be under no obligation to allow any individual or group of individuals to witness the Services being carried out.
Web Based Services
2.6 Any web based services offered by Fera are provided subject to Fera’s website terms and conditions of use at www.fera.co.uk. In the event of any conflict between these Terms and Conditions and the website terms, these Terms and Conditions shall prevail.
2.7 Fera will grant a personal (with no right to sub-licence), temporary, non-exclusive and revocable licence to each Representative of Customer who needs to access and use the web-based services strictly to the extent necessary for the purposes of this Agreement.
2.8 Unique user identifying information and passwords are deemed be Confidential Information for the purpose of clause 9 (Confidentiality).
3.1 Where Fera has agreed to arrange for the delivery of Goods to Customer’s designated location, then Fera will notify Customer of the date (or dates) for delivery. Except as otherwise agreed in writing, such date(s) will be during a Working Day and during Customer’s standard working hours.
3.2 Where Customer is responsible for arranging the collection of Goods from Fera’s designated facility, then Fera will notify Customer of the date (or dates) for collection. Except as otherwise agreed in writing, such date(s) will be during a Working Day and during Fera’s standard working hours.
3.3 Fera shall use its reasonable endeavours to comply with requests made by the Customer to: (a) postpone delivery of the Goods; (b) make delivery of Goods on a specified date (or dates); (c) postpone the collection date (or dates) of Goods; or (d) make Goods available for collection on a specified date (or dates); but shall be under no obligation to do so.
(a) Customer refuses or fails to take delivery of Goods or arrange for the collection of Goods following notification by Fera in accordance with clause 3.1 or 3.2 (respectively); or
(b) Fera is unable to deliver Goods on the stated delivery date due to the Customer’s failure to provide adequate instructions or procure required documents, licences, permits or authorisations; or
(c) Customer is unable to collect Goods on the stated due date of collection due to Customer’s failure to comply with clause 3.8;
then Fera may, at its sole election arrange for the storage of the Goods and the Customer shall pay all related costs and expenses associated with storing and either (a) arranging for the redelivery of Goods; or (b) making available the Goods for collection, on an indemnity basis in addition to the Price. If the Customer fails to take delivery or collect the Goods (as the case may be) within fourteen (14) calendar days following the original notified date of delivery, Fera terminate the Agreement in accordance with clause 17.3(d).
3.5 If Goods are delivered in instalments, each individual delivery shall constitute a separate Agreement. Any failure by Fera to deliver or any Claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat this Agreement as repudiated (in whole or in part).
3.6 Fera reserves the right to change the batch of the Goods at any time, and Goods may be delivered which originate from multiple batches.
3.7 Packaging supplied by Fera, unless otherwise expressly agreed in writing, is intended only to provide adequate protection in normal conditions of transit and storage of expected duration.
3.8 Customer shall collect, transport, handle, store, process and use Goods in accordance with any written instructions supplied by Fera.
3.9 Without prejudice to clause 4 (Warranties), Customer shall perform such acceptance tests on delivered Goods in accordance with the Specification and standard industry practice. Unless Fera receives written notification to the contrary, Goods will be deemed as accepted ten (10) Working Days following delivery to Customer or collection by Customer (as appropriate).
3.10 Risk in Goods shall pass to the Customer upon delivery in accordance with this clause 3 (Goods).
3.11 Title to Goods shall remain with Fera until all sums due or payable by the Customer under this Agreement or any other contract between the Customer and Fera is made in full and cleared funds.
4.1 Fera grants to Customer the following Warranties in respect of Services:
(a) Services will be performed by suitably qualified and experienced personnel;
(b) Services will be performed exercising reasonable skill and care;
(c) Services will be performed in material conformance with the Specification; and
(d) Information provided in respect of Services will be complete and accurate.
4.2 Fera grants to Customer the following Warranties in respect of Goods:
(a) Goods will be delivered free from any third-party rights or interests;
(b) Goods will be provided in material compliance with the Specification;
(c) Goods will be provided free from defects in materials and workmanship; and
(d) Information provided in respect of Goods will be complete and accurate.
4.3 Where Customer reasonably suspects that Deliverables are defective due to a breach of the Warranties, Customer will:
(a) provide Fera with written notice of its claim within five (5) Working Days form the date that the circumstances giving rise to its claim arose (or ought reasonably to have been apparent to Customer) specifying in sufficient detail the reason(s) giving rise to the suspected breach of Warranty;
(b) immediately cease use of the Deliverable(s) to which its claim relates; and
(c) in the case of Goods, at Fera’s election, either:
(i) arrange for the return of such Goods to Fera’s designated facility (at Customer’s cost and expense); or
(ii) segregate and make available the Goods for Fera’s inspection at Customer’s facility.
4.4 Fera will conduct its own inspection and investigation on the Deliverables. Customer will perform all actions reasonably necessary to enable Fera to validate a claim for breach of Warranty, including making available Goods for Fera’s inspection at Customer’s facility and producing such supporting Information as reasonably requested by Fera.
4.5 For such Deliverables that are found by Fera to be defective, Fera will provide to Customer the remedies in accordance with clause 4.6, except that Fera will have no liability to Customer for breach of the Warranties or any Loss:
(a) to the extent that it arises from:
(i) fair wear and tear;
(ii) misuse, negligence, recklessness or deliberate action of Customer or any third party;
(iii) alterations, repairs or modifications made without Fera’s written instruction;
(iv) failure or refusal to comply with Fera’s written instructions or recommendations (including with regards to the transport, storage, handling, processing, or use of Goods);
(v) manufacture of Goods to comply with Customer’s specification or requirements;
(vi) use of the Deliverables for a purpose which has not been specified by Fera.
(b) unless Fera was notified of the circumstances giving rise to Customer’s claim in writing within ten (10) Working Days following delivery of the Deliverable or (where such suspected breach would not have been reasonably apparent on delivery of the Deliverable) in any event where Fera did not receive notice from Customer within sixty (60) days following delivery; or
(c) where Fera is prevented from validating the claim due to Customer’s failure or refusal to comply with Fera’s reasonable requests.
4.6 Remedy. Fera will, at its sole discretion:
(a) in the case of Services, re-perform the Services within thirty (30) days;
(b) in the case of Goods, arrange for their prompt repair or for the delivery of suitable alternative or substitute Goods free of cost and within a reasonable time; and/or
(c) repay the Prices received in respect of the Deliverables the subject of this clause 4.6.
4.7 The remedy provided by Fera in accordance with clause 4.6 will be Customer’s sole and exclusive remedy in respect of such Deliverables.
4.8 Customer shall indemnify and keep indemnified Fera against any and all Claims in respect of Loss arising from use of the Goods after Customer becomes aware of (or should reasonably been aware of) the existence of a defect.
5.1 The Customer shall indemnify and keep indemnified Fera from and against any and all Claims in respect of Loss which arise due to the manufacture of Goods in accordance with a specification provided by the Customer.
5.2 Fera does not guarantee suitability of materials or design of Goods made in accordance with the Customer’s specification even if the purpose for which such Goods are ordered is known to Fera.
5.3 Where Fera supplies Goods to the Customer for incorporation with, or use ancillary to, any composite or other products to be produced, manufactured, processed or supplied by the Customer or a third party then the Customer shall indemnify and keep indemnified Fera against any and all Claims in respect of Loss arising pursuant to the Consumer Protection Act 1987 or otherwise, relating to the composite or other products in circumstances in which the Goods supplied by Fera are either:
(a) not the defective part of the composite or other product; or
(b) are only rendered the defective part or became a defective product by reason of acts or omissions of the Customer or a third party; or
(c) are only rendered the defective part or became a defective product by reason of instructions or warnings given by the Customer or other supplier of the composite or other products; or
(d) are supplied in accordance with a specification furnished by, or on behalf of, the Customer.
5.4 For the purpose of clause 5.3 only, the word “defective” shall be interpreted in accordance with the definition of “defect” contained in Part 1 of the Consumer Protection Act 1987.
6. CUSTOMER OBLIGATIONS
6.1 The Customer shall provide Fera, in a timely manner, with such Information and Customer Material as necessary for Fera to carry out the Services and/or provide the Goods.
6.2 Customer provides to Fera the following warranties:
(a) that all Information provided by it or on its behalf will be complete and accurate;
(b) the warranties contained in clause 4.2 mutatis mutandis in respect of Customer Material;
(c) that it has obtained or will obtain all necessary licences, approvals, permits or authorisations required in relation to this Agreement;
(d) that Customer Material will be delivered, assembled and maintained during the term of this Agreement at its own cost and expense.
(e) that upon either termination or expiry of the Agreement; or Fera’s written request, Customer will decommission, dismantled make safe, remove and collect Customer Material then in Fera’s possession, at Customer’s cost and expense.
(f) that Customer will give Fera written notice of any hazards (known or suspected) that might arise in Fera’s transport, handling, storage, processing or use of Customer Material.
6.3 If Customer Material is found by Fera to be defective, Customer will supply satisfactory substitute Goods at the Customer’s cost and expense and within a reasonable time.
6.4 Risk in Customer Material shall remain with Customer at all times. Except for Customer Material, all other equipment, apparatus, material and accessories obtained by Fera and/or used for the purposes of providing the Deliverables shall remain the property of Fera.
6.5 Except as expressly agreed with Fera in writing, Customer shall arrange for delivery of Customer Material DDP Fera’s Sand Hutton facilities (Incoterms 2010, for which purposes Fera shall be construed as the ‘buyer’ and Customer as the ‘Seller’).
6.6 Customer shall bear any Taxes incurred as a result of providing Customer Material to Fera. Fera reserves the right not to accept deliveries which bear unpaid Taxes, in which case Customer shall pay all the costs associated with the return of such Customer Material. Where Fera does accept the delivery of such Customer Material then any such Taxes paid by Fera will paid for by Customer on an indemnity basis in addition to the Price.
7. LIMITATION OF LIABILITY
7.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO WARRANTY, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AS TO THE CONDITION, QUALITY, PERFORMANCE OR FITNESS FOR PURPOSE OF THE DELIVERABLES IS ASSUMED BY FERA AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE EXCLUDED TO THE EXTENT PERMITTED BY LAW
7.2 Subject to the other provisions of this clause 7 (Limitation of Liability):
(a) the maximum aggregate liability of the Customer (and its Group) to Fera (and its Group) under or in connection with this Agreement, whether arising under contract or by way of indemnity, negligence (including negligent breach of contract) or other legal theory shall not exceed the greater of: (a) 300% (three hundred percent) of the Price paid or payable in the 12 (twelve) months preceding the date on which that liability arises; and (b) £500,000 (five hundred thousand pounds); and
(b) the maximum aggregate liability of Fera (and its Group) to the Customer (and its Group) under or in connection with this Agreement, whether arising under contract or by way of indemnity, negligence (including negligent breach of contract) or other legal theory shall not exceed the greater of 100% (one hundred per cent)] of the Price paid or payable in the 12 (twelve) months preceding the date on which that liability arises; and (b) £100,000 (one hundred thousand pounds).
7.3 The maximum liability of the Customer to Fera for damage to or loss of tangible property in connection with this Agreement shall not exceed £10,000,000 (ten million pounds) per Claim.
7.4 Subject to the other provisions of this clause 7 (Limitation of Liability), neither Party shall be liable to the other party for any consequential, indirect or special losses however arising in connection with this Agreement.
7.5 Nothing in this Agreement shall exclude or limit the liability of either Party for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any matter for which it would be illegal to exclude or limit liability.
7.6 Nothing in this Agreement shall exclude or limit the liability of the Customer for, and the Customer shall indemnify Fera against all Loss (including all consequential, direct, indirect or special losses, loss of business, goodwill, profit, reputation and revenue, interest and legal costs calculated on a full indemnity basis) in connection with:
(a) any breach of clauses 9 (Confidentiality), 11 (Compliance with Law), 12 (Intellectual Property Rights), or 13 (Intellectual Property Infringement); or
(b) any Claim made against Fera by a third party arising out of, or in connection with, the supply of the Deliverables, to the extent that such Claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by the Customer, its Representatives or subcontractors.
7.7 The Customer shall be liable to Fera for any Claim made against Fera as a result of any tort committed by the Customer’s Representatives whilst on Fera premises.
7.8 Recommendations and advice given by Fera or its Representatives as to:
(a) the methods of transporting, storage, handling, processing or use of Goods; and/or
(b) the suitability of using such Goods in manufacturing processes or in conjunction with any other materials;
are given without liability on the part of Fera. Such recommendations and advice provided by Fera are for sole and exclusive use and are deemed confidential information for the purpose of clause 9 (Confidentiality).
Customer shall effect and maintain with a reputable insurance company a policy or policies of insurance covering all the Customer’s liabilities under this Agreement of at least £5,000,000 (or Customer’s local currency equivalent) per Claim and shall at the request of Fera produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due thereunder.
9.1 Each Party shall in respect of any Confidential Information received by it under this Agreement:
(a) only use such Confidential Information for the purposes of this Agreement;
(b) treat such Confidential Information as confidential and not at any time for any reason disclose or permit it to be disclosed to any person other than in accordance with the terms of this Agreement;
(c) disclose such Confidential Information only to those of its Representatives who need to know such Confidential Information and provided that such Representatives are informed of the confidential nature of the Confidential information and are subject to obligations of confidentiality to that Party at least as stringent as those in this Agreement; and
(d) protect such Confidential Information with at least the degree of care that it uses to protect its own Confidential Information and in any event with no less than a reasonable standard of care.
9.2 The provisions of clause 9.1 shall not apply to Information which:
(a) is at the time of receipt (or which subsequently becomes) available to the public other than through a breach of this Agreement;
(b) is lawfully disclosed to either party by a third party without restriction on its use or disclosure;
(c) is independently developed by the receiving Party;
(d) is in the possession of or known by the receiving Party prior to its receipt from the disclosing Party; or
(e) is disclosed to the extent necessary to comply with an Applicable Law, provided that the Party making such disclosure shall give the other Party written notice not less than 2 (two) Working Days in advance of such disclosure (unless such notice would itself be contrary to law).
9.3 Each Party agrees that damages would not be an adequate remedy for any breach of this clause 9 (Confidentiality). Without prejudice to any other remedies the remedies of injunction, specific performance and other equitable relief shall be available in connection with any actual or threatened breach of this clause 9 (Confidentiality) and no proof of special damages shall be necessary.
10. PRICE AND PAYMENT
10.1 Except as expressly agreed by Fera in writing, the currency used for payment under this Agreement shall be British pounds sterling. Any bank charges associated with payments made by Customer (for example, charges levied on payments from overseas) shall be payable by the Customer on demand from Fera.
10.2 Except where Fera (at its sole election) agrees to receive payment by credit card (or other like method), invoices will be submitted by Fera in accordance with the Specification. Payment of each invoice will be due no later than thirty (30) days from the date of delivery of that invoice. Payment will be deemed to have been made only when cleared good value funds appear in Fera’s nominated bank account.
10.3 The Price payable in connection with this Agreement is exclusive of VAT which shall be charged to the Customer at the prevailing rate, and Customer shall pay such VAT in addition to the Price.
10.4 If the payment of any sum due in accordance with this Agreement is subject to a dispute, then:
(a) the Parties will resolve such dispute in accordance with clause 20 (Dispute Resolution);
(b) Customer shall pay any undisputed amount(s) of such sums in accordance with this clause 10 (Payment);
(c) Customer shall provide to Fera its reason(s) for disputing the payment of such sum(s) together with such supporting Information as reasonably requested by Fera; and
(d) Fera shall be entitled to withhold the delivery of Deliverables until the dispute is resolved.
10.5 Payment of any sum by the Customer shall deem to be acceptance or an acknowledgement that Fera has delivered the Deliverables in accordance with this Agreement.
10.6 Without prejudice to Fera’s other rights and remedies under this Agreement, any undisputed sums for which Customer has not made payment after the due date shall bear compounded interest at the rate of four hundred (400) basis points over the prevailing base rate of the Bank of England calculated from the original due date for payment until payment of such sum(s) are actually received in full Fera. The Parties agree that such interest is a ‘substantial remedy’ for the purposes of section 9 of the Late Payment of Commercial Debts (Interest) Act 1998.
10.7 Time shall be of the essence in relation to payments by the Customer to Fera under the Agreement.
11. COMPLIANCE WITH LAW
(a) Each Party in performing its obligations under this Agreement will comply with Applicable Laws and neither Party shall expect or demand that the other Party performs any act or omission that would (in that Party’s reasonable opinion) cause it to infringe any Applicable Law.
(b) Each Party shall remain primarily responsible for the compliance with Applicable Laws of its Representatives and subcontractors.
11.2 Modern Slavery. Each Party shall perform its obligations under this Agreement in compliance with (and shall ensure that its Representatives and sub-contractors comply with) the Modern Slavery Act 2015.
11.3 Bribery and corruption.
(a) Each Party warrants to the other that it shall not, and that its Representatives shall not, induce, do or agree to do any other act, failure to act or thing in connection with this Agreement that contravenes any Applicable Law relating to anti-bribery and corruption or anti-money laundering, including:
(i) the Ethical Legislation; and
(ii) in the case of a Public Official, any Applicable Law applicable to the Public Official in their capacity as such.
(b) Each Party shall maintain policies applicable to its Representatives that are designed to prevent them from contravening any Applicable Law relating to bribery and corruption or money laundering, including maintaining a gifts and hospitality policy requiring such persons to not accept, agree, authorise, give, offer, promise, request or undertake any Inducement (or to agree to do any of the same).
(c) Each Party agrees to notify the other as soon as reasonably practicable upon becoming aware of any extortive solicitation, demand or other request for anything of value, by or on behalf of any person relating to this Agreement or its subject matter.
11.4 Each Party will notify the other in writing promptly upon discovering any actual, potential or suspected breach of this clause 11 (Compliance with Law).
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Except as expressly stated to the contrary, nothing in this Agreement shall purport or effect to transfer ownership of Intellectual Property Rights between the Parties.
12.2 Background IPR
(a) Fera grants to Customer a royalty-free, worldwide, non-exclusive (with a right to sub-licence with the prior written consent of Fera), temporary licence to use its Background IPR which the Customer reasonably requires in order to exercise its rights under and receive the benefit of, this Agreement, but specifically excluding any right to commercially exploit such Background IPR.
(b) Customer grants to Fera a royalty-free, fully paid-up, irrevocable, perpetual, worldwide, non-exclusive licence (with a right to sub-licence) to copy, use, modify, develop and maintain the Customer’s Background IPR which Fera requires for the purpose of exercising its rights under this Agreement and delivering the Deliverables.
(c) Where Background IPR identified in accordance with clauses 12.2(a) or (b) is the Intellectual Property Rights of a third party, then the Party controlling such Background IPR shall procure that the third party grants a licence as required by clause 12.2(a) or (b) (as applicable) or (where the third party is itself a licences of such Intellectual Property Rights), shall grant an authorised sub-licence in respect thereof.
12.3 Customer shall not infringe the Intellectual Property Rights of any third party in performance of this Agreement and shall, during and after the Term, indemnify and keep indemnified and hold Fera harmless from and against all Claims which Fera may suffer or incur as a result of or in connection with Customer’s breach of this clause 12 (Intellectual Property Rights) except to the extent that such Claim results from the breach of any sub-licence of Intellectual Property Rights by Fera.
12.4 Fera shall not infringe the Intellectual Property Rights of any third party in performance of this Agreement and shall, during and after the term, indemnify and keep indemnified and hold Customer harmless from and against all Claims which Customer may suffer or incur as a result of or in connection with Fera’s breach of this clause 12 (Intellectual Property Rights) except to the extent that such Claim results from Loss due to:
(a) inclusion of any materials provided by Customer which infringe the Intellectual Property Rights of a third party;
(b) the use by Customer of the relevant Intellectual Property Rights in a manner other than in accordance with the written instructions of Fera;
(c) modification of the relevant Intellectual Property Rights or Services after delivery by Fera to Customer if such modification was not authorised by Fera;
(d) use by Fera of any third party Intellectual Property Right licenced by the Customer to Fera for performance of this Agreement; and/or
(e) the breach of any sub-licence of Intellectual Property Rights by the Customer.
12.5 Foreground IPR
(a) Foreground IPR shall vest unconditionally and with full title guarantee in Fera. The Customer shall procure that its Representatives do not assert any moral rights in such Foreground IPR (as defined in Chapter IV of the Copyright, Designs and Patents Act 1988).
(b) Fera shall grant to the Customer a personal, non-exclusive, global, royalty-free, fully paid-up licence to use, copy, develop or modify the Foreground IPR to the extent necessary in the direct field of application for which the Deliverables were carried out. The exact terms of any licence will be agreed through good faith negotiations between the Parties.
(c) Without prejudice to clause 12.5(b), Foreground IPR in any Report shall vest in Customer. Fera hereby assigns to Customer, with full title guarantee, all Intellectual Property Rights which may subsist in any Report prepared in accordance with this Agreement, except that Customer will have no right to use or reproduce any Fera Marks without the prior written approval of Fera.
13. INTELLECTUAL PROPERTY INFRINGEMENT
13.1 General. Each Party shall notify the other in writing of any Claim brought against it for infringement or alleged infringement of any Intellectual Property Right in any materials supplied and or/ licenced by it to the other Party,
13.2 Claims against Customer.
(a) Customer shall at its own expense conduct all negotiations and any litigation arising in connection with any Third-Party IP Claim arising from the performance of its obligations under this Agreement. Customer shall provide regular notices to Fera of all material issues that arise during the conduct of such litigation and notification.
(b) Fera shall at the request of Customer afford to Customer all reasonable assistance for the propose of contesting any Third-Party IP Claim.
(c) Fera shall not make any admission which may be prejudicial to the defence of settlement of any Third-Party IP Claim.
13.3 Claims against Fera.
(a) Fera shall at its own expense conduct all negotiations and any litigation arising in connection with any Third-Party IP Claim arising from the performance of its obligations under this Agreement. Fera shall provide regular notices to Customer of all material issues that arise during the conduct of such litigation and notification.
(b) Customer shall at the request of Fera afford to Fera all reasonable assistance for the purpose of contesting any Third-Party IP Claim.
(c) Customer shall not make any admission which may be prejudicial to the defence of settlement of any Third-Party IP Claim.
13.4 Continued performance. If any Third-Party IP Claim is made or in the reasonable opinion of Fera is likely to be made against Fera that will prevent or delay delivery of the Goods and/or Services, Fera shall notify Customer and shall (at its sole discretion):
(a) modify the Deliverables to provide so as to avoid infringement or alleged infringement;
(b) substitute alternative Deliverables of substantially equivalent performance and functionality, so as to avoid the infringement or alleged infringement;
(c) procure a licence to use the Intellectual Property Right(s) and supply Deliverables which are the subject of the alleged infringement; and/or
(d) terminate the Agreement.
14. EXCUSABLE DELAY
14.1 Neither Party shall be in breach of this Agreement or liable to the other for any delay, non-performance or Loss caused by a Force Majeure Event, subject always to that Party:
(a) promptly giving written notice to the other of the details of any Force Majeure Event, including an estimate of its duration, the extent to which its delivery of this Agreement is likely to be affected and any mitigating action being taken;
(b) taking all reasonable steps to minimise the effects of the Force Majeure Event and to resume full delivery of this Agreement as soon as reasonably possible;
(c) facilitating any efforts that the other Party makes to obtain alternative goods or services; and
(d) Using all reasonable endeavours to continue to deliver or resume delivery of this Agreement for the duration of that Force Majeure Event.
14.2 Following cessation of the Force Majeure Event, the Party relying on the Force Majeure Event shall:
(a) provide written notice to the other Party confirming the cessation of the Force Majeure Event; and
(b) resume performance of its obligations under this Agreement as soon as reasonably possible.
14.3 Fera will not be in breach of this Agreement, or liable for any Loss sustained or incurred by Customer due to delay or non-performance of its obligations to the extent that such delay or non-performance was caused directly or indirectly by any act or omission of the Customer, its Representatives or sub-contractors.
15. CHANGE MANAGEMENT
15.1 External Change. Where either a Change in Law has the effect of:
(a) materially increasing the cost to Fera of providing the Deliverables;
(b) introducing a material delay in delivery of Deliverables;
(c) requiring Fera to render substantially different performance any provision of this Agreement or any transaction(s) contemplated thereby;
then Fera will issue to Customer a change notice in accordance with clause 15.3. Following delivery of such notice, the Parties will work jointly and use their reasonable best efforts to identify means of mitigating the effects of such Change in Law.
15.2 For the avoidance of doubt:
(a) no change or purported change to this Agreement shall be of any effect unless executed as a variation in accordance with clause 19.2; and
(b) The provisions of this clause 15 (Change Management) are without prejudice to the provisions of clause 14 (Excusable Delay).
16. SUSPENSION, DELAY OR EXTENSION OF TIME
16.1 Without prejudice to its other rights and remedies, Fera reserves the right, at its sole option, to suspend or withhold performance under this Agreement where:
(a) Customer has failed to make payment by the due date of undisputed sums invoiced by Fera in accordance with clause 10 (Price and Payment);
(b) until receipt of satisfactory credit reference in respect of Customer;
(c) where the supply of Deliverables would exceed any credit limit which Fera may, in its absolute discretion, have granted to Customer; and/or
(d) Customer is otherwise in breach of any of the terms of this Agreement.
16.2 Customer agrees to not do or omit to do anything (whether directly or indirectly) that has the purpose, effect or likely effect of a Suspension, Delay, or Extension of Time.
16.3 Fera reserves the right, and Customer agrees to be liable for any costs related to loss of profits, loss of goodwill, and loss of opportunity arising either directly or indirectly of an amount equal to 50% of the Deliverables for a Suspension, Delay or Extension of Time.
17.1 The Agreement may be terminated by Fera for convenience on giving one (1) months written notice.
17.2 Fera may terminate this Agreement immediately on written notice to the Customer if:
(a) Fera (acting reasonably) determines that a conflict of interests exists or may develop between Fera and Customer;
(b) Any undisputed sum of Charges exceeding £5,000 (five thousand pounds) remains unpaid for more than thirty (30) days after the due date for payment in accordance with clause 10 (Price and Payment) and following written demand from Fera;
17.3 Either Party may terminate the Agreement immediately by written notice to the other where:
(a) the other Party experiences an Insolvency Event;
(b) the other Party commits a breach of the Agreement which (if capable of remedy) has not been remedied by the Party in default within thirty (30) days from delivery of written notice in respect of such breach;
(c) the other Party is impacted by a Force Majeure Event that has prevailed for more than 60 (sixty) Working Days; or
(d) that other Party commits a material breach of the Agreement. Without prejudice to the generality of the foregoing, a breach of clauses 9 (Confidentiality), 11 (Compliance with Law), 12 (Intellectual Property Rights) and/or 13 (Intellectual Property Infringement) shall be considered a material breach for the purposes of this Agreement.
18. EFFECTS OF TERMINATION
18.1 Termination of the Agreement shall not affect any obligation or liability of any Party which has accrued prior to the date of termination.
18.2 Any sums invoiced for payment before the effective date of termination or expiry will become immediately due and payable.
18.3 Except for clauses, 3 (Goods), 4 (Warranties), 5 (Specification), 6 (Customer Obligations) 7 (Limitation of Liability), 9 (Confidentiality), 10 (Price and Payment), 11 (Compliance with Law), 12 (Intellectual Property Rights), 13 (Intellectual Property Infringement) 18 (Effect of Termination), 19 (General), 20 (Dispute Resolution) and 21 (Law and Jurisdiction) and except in respect of any other accrued rights, neither Party shall be under any further obligation to the other.
18.4 Fera may, during the term of the Agreement and upon termination, set off against any debt owed by the Customer to Fera, or the amount of Loss Fera has reasonably assessed as resulting from the termination of the Agreement, any sums otherwise due to the Customer.
18.5 The Parties will upon request return or destroy any Confidential Information of the other Party in its possession (and certify such destruction), save:
(a) to the extent that each Party is required to retain copies of Confidential Information in accordance with its audit requirements or pursuant to an Applicable Law; and
(b) neither Party will be considered in breach of this clause 18.5 where Confidential Information remains its computer archive and backup facilities following reasonable efforts to delete such Confidential Information.
19.1 Assignment and Sub-Contracting
(a) The Customer shall not assign or sub-contract the Agreement or any part of it without the prior consent of Fera in writing, such consent not to be unreasonably withheld. Any attempted or purported assignment in contravention of this clause 19.1 shall be void.
(b) Fera may at any time, on reasonable notice in writing to the Customer, transfer or assign all or any rights and/or obligations under the Agreement.
(c) Fera shall be free to subcontract or otherwise deal with the whole or any part of the Deliverables.
19.2 Waiver and variation
(a) No amendment or variation of this Agreement shall be effective unless it is in writing and signed by a duly authorised representative of each of Party.
(b) A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
(c) A failure or delay to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.3 Legal Relationship
(a) Nothing in the Agreement shall create a partnership or joint venture between the Parties or have the effect of making any Representative of the Customer an employee or servant of Fera or of making any Representative of Fera an employee or servant of the Customer.
(b) Neither Party shall act or describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other’s behalf.
(c) Where the Customer consists of more than one person, the obligations of those persons in respect of the Agreement shall be joint and several.
19.4 Severability. If a provision of this Agreement is found to be unenforceable by a court that provision shall be deemed to be amended to the minimum extent necessary to make it enforceable. The unenforceability of a provision of this Agreement shall not affect its continuance in force or any of its other provisions.
(a) Any written notice required to be given in connection with this Agreement shall:
(i) be sent by electronic mail to the nominated Representative of the other party to the email address specified above;
(ii) be deemed to have been received on the day the electronic mail is sent in accordance where that day is a Working Day, or on the next Working Day.
(b) Written notices required to be given in connection with this Agreement may only be given by:
(i) a director duly authorised to do so by that party (or a substantially equivalent senior manager if the Customer does not have directors);
(ii) the nominated Representative of that party, but only in respect of a written notice relating to acceptance.
19.6 Third Party Rights. A person who is not a party to the Agreement shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
(a) For the term of this Agreement and 12 (twelve) months after neither party shall approach any Staff of the other party with a view to engaging that person as an agent, contractor or employee either in its own right or on behalf of a third party.
(b) Nothing in this Agreement shall limit the right of either party to employ any person who has approached it in response to any public advertisement.
19.8 Entire Agreement.
(a) This Agreement (including any and any Schedules thereto and Orders placed thereunder) shall together represent the entire understanding and constitute the whole agreement between the Parties in relation to its subject matter.
(b) The Parties agree that there are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between them except as specifically set forth herein and neither Party has relied on any other Information, discussion or understanding in entering into and completing the transactions contemplated in this Agreement.
(c) Nothing in this clause 19.8 shall seek or purport to relieve either Party for liability in respect of fraud or fraudulent misrepresentation.
19.9 Publicity. Neither Party shall make any press announcement or publicise this Agreement without the prior written consent of the other Party, save that Fera shall be entitled to refer to the Customer as its customer in its general marketing, publicity and case study materials.
19.10 Remedies cumulative. The remedies available in connection with this Agreement are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.
19.11 Counterparts. This Agreement may be executed in counterparts each of which when executed and delivered is an original, but such counterparts shall be deemed to constitute one and the same instrument. The parties agree that signatures exchanged by electronic means are effective for the purposes hereunder to the same extent as original signatures.
20. DISPUTE RESOLUTION
20.1 Fera and the Customer shall in good faith attempt to negotiate a settlement to any dispute between them arising out of or in connection with the Agreement. If any such dispute cannot be so resolved, the dispute may, by agreement between Fera and the Customer, be referred to mediation in accordance with clause 20.2
20.2 The procedure for any such mediation shall be as follows:
(a) A neutral person (the “Mediator”) shall be chosen by agreement between the Parties, or (where the Parties cannot agree on the Mediator), either Party may within 10 Working Days from the notice of mediation, apply to the Centre for Dispute Resolution (“CEDR”) to appoint a mediator (who shall then be the Mediator).
(b) The Parties shall within 10 Working Days of the appointment of the Mediator meet with him to agree a timetable for the exchange of all relevant and necessary Information and the procedure to be adopted for the mediation. If appropriate, either Party may at any stage seek from CEDR guidance on a suitable procedure.
(c) Unless otherwise agreed, all negotiations and proceedings in the mediation connected with the dispute shall be conducted in strict confidence and shall be without prejudice to the rights of the Parties in any future proceedings.
(d) If the Parties reach agreement on the resolution of the dispute, that agreement shall be set out in writing and shall be binding upon them.
(e) Failing agreement, either Party may invite the Mediator to provide a non-binding but informative opinion in writing. Such opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings relating to the dispute without the prior written consent of both Parties.
20.3 For a period of sixty (60) calendar days from the date of the appointment of the Mediator, or such other period as the Parties may agree, neither Party may commence any proceedings in relation to the matters referred to the Mediator.
21. LAW AND JURISDICTION
21.1 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection to it shall be construed in accordance with the law of England and Wales.
21.2 The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of England.
21.3 Each Party expressly waives any claim that it may have on the grounds of inconvenient forum