AVS Bio Netherlands B.V.’s Terms and Conditions for Services
1. Scope
(a) All quotations for services (“Quote”) by AVS Bio Netherlands B.V. “(Service Provider”) are subject to and expressly governed by the terms and conditions (“T’s and C’s”) contained herein.
(b) If Client submits any acknowledgment of the Quote that contains terms and conditions that are inconsistent with or in addition to the Quote or these T’s and C’s, those additional or inconsistent terms are specifically rejected by Service Provider and Service Provider hereby objects to any such terms and conditions.
(c) No variation of these T’s and C’s will be binding upon Service Provider unless agreed to in
writing and signed by an officer or other authorized representative of Service Provider.
Agreement
2. Background and Purpose of T’s and C’s.
Client is engaged in the research, development and commercialization of biotechnology, pharmaceutical, or other life science products. Service Provider provides antibody products and related services to the life science industry and from time to time, may be engaged in certain research and development activities if required. Client
desires to utilize Service Provider’s services, and Service Provider desires to provide those services, in accordance with these T’s and C’s.
3. Definitions.
Terms used in these T’s and C’s with their initial letters capitalized have the meanings ascribed to them in this section or where they are elsewhere defined in these T’s and C’s. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in these T’s and C’s:
(a) “Affiliate” shall mean, any corporation, partnership, limited liability company or other legal or business entity which, directly or indirectly, controls, is controlled by, or is under common control with, the specified Party.
For purposes of this definition, the term “control” as applied to any Party or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management of that Party or entity, whether through ownership of more than fifty percent (50%) of the voting securities of such entity, by contract, or otherwise.
(b) “Quote” means any written statement of work, scope of work, quote, exhibit, schedule, addendum, or other similar document, describing a project (“Project”) and/or specifications of such Project, or part thereof, attached hereto or referencing these T’s and C’s, each of which are hereby incorporated by reference into these T’s and C’s. Attachments further include any previous similar statement of work, quote, exhibit, schedule, addendum, or other similar document under any previous agreement between the parties which is superseded by these T’s and C’s.
(c) “Background Materials” means, with respect to Service Provider and its Affiliates, (i) any information, data, technology, software, platform, processes, Intellectual Property Rights and any other exclusive rights or any other materials (“Material”) developed by, for, or on behalf of the Service Provider, and/or Service Provider Affiliates, or acquired by Service Provider, and/or Service Provider Affiliates, (including materials and technology available to Service Provider, and/or Service Provider’s Affiliates, in accordance with a license grant), (ii) any Material conceived, reduced to practice, authored, created or developed by or on behalf of Service Provider, and/or Service Provider’s Affiliates, separately and independently of the Services performed under these T’s and C’s , (iii) any Material resulting from the application of Service Provider’s, and/or Service Provider’s Affiliates, tools on Client Materials, excluding Client’s proprietary information and Deliverables, (iv) Service Provider’s and its Affiliates proprietary Artificial Intelligence and Machine Learning (AI/ML) algorithm and related software (including any source code) or application thereof, and/or (v) all inventions developed in connection with the Services or otherwise under these T’s and C’s, provided that the improvements, modifications and inventions are of general applicability to Service Provider’s, and/or Service Provider’s Affiliates’, technologies, excluding Client’s proprietary information or Deliverables.
(d) “Client” is that entity receiving services from Service Provider.
(e) “Client Materials” means all information and materials specific to Client (including, without limitation, cell lines, antigens, other materials) or its requirements that are furnished by the Client or necessary for Service Provider’s performance under these T’s and C’s.
(f) “Confidential Information” means all information disclosed (orally or in writing) by one party or its affiliates (“Discloser”) to any other party (“Recipient”) prior to the termination of any services provided by Service Provider to Client which is marked “proprietary” or “confidential” or for which it is apparent from the nature of the information that it is considered confidential.
(g) “Deliverables” means those documents and materials, including but not limited to reports, analyses, data, antibodies, electronic representation of the Sequences, cell culture supernatant, and other similar materials, that Service Provider provides and delivers to Client in accordance with these T’s and C’s, as set forth in one or more Quotes. The Deliverables do not include Service Provider’s Background Materials.
(h) “Deficient Material” means with respect to a Deliverable which is a physical antibody, the failure to meet the specific antibody quantity specified in a relevant Quote.
(i) “Intellectual Property Rights” means all inventions, patents, copyrights, and any and all applications for, and extensions, divisions, and reissuances of, any of the foregoing, and rights therein, everywhere in the world, and whether arising by statute or common law.
(j) “Project” means a set of discrete Services or Deliverables as may be described as such in an applicable Quote.
(k) “Sequence” means the entire DNA, RNA, or any other such sequence representing a macromolecule.
(l) “Services” means those services Service Provider will provide to Client as set forth in one or more Quotes, but that exclude the scientific research and experimental services being the object of a tax credit application by Service Provider.
(a) Service Provider will provide Services and Deliverables to Client as specified in one or more Quotes provided by Service Provider to Client. In the event of a conflict between these T’s and C’s and a Quote, these T’s and C’s will prevail unless such Quote expressly and specifically states an intent to supersede these T’s and C’s on a specific matter.
(b) Client will provide prompt and timely delivery, at its cost, of all Client Materials. Client acknowledges and agrees that Service Provider’s performance is conditioned upon Client’s timely and effective performance of its responsibilities, decisions, and approvals. Service Provider may rely on all written information, decisions, and approvals of Client (which may include emails), without further verification. Any electronic communication, including electronic mail, between the parties shall be considered to be a “writing” and/or “in writing”.
4. Provision of Services and Deliverables.
(c) Service Provider may subcontract its responsibilities under these T’s and C’s but shall remain responsible for the services provided by any subcontractor.
5. Fees and Payment.
As consideration for the Services and Deliverables, and the rights granted under this Agreement, Client agrees to pay to Service Provider the fees in the amounts and on the schedules set forth in the Quote. Service Provider will submit invoices of the fees due and payable to it under this Agreement, and Client agrees to pay amounts due under such invoices. Invoices will be due and payable not later than thirty (30) days after delivery of each such invoice. Payments more than thirty (30) days overdue are subject to interest of 1.5% per month on any overdue amounts, or the maximum permitted by law, whichever is less.
6. Acceptance.
Client understands and acknowledges that Services and Deliverables are research and development and experimental in nature, and will be process and performance only (or accepted “AS-IS”) and will not be subject to rejection at any time, provided that the Deliverables do not have Deficient Material. In the event of Deficient Material, Service Provider will use professionally reasonable efforts to correct any quantity deficiencies and provide Client with a replacement or revised Deliverable as soon as commercially practicable.
7. Termination.
(a) Either party may terminate the Project described in any Quote (i) for a material breach thereof by the other party (including, but not limited to, nonpayment of fees, failure to fulfill any responsibilities set forth in the Quote, or failure to cooperate in good faith with the other party in connection with the Services) upon giving the other party thirty (30) days prior written notice identifying specifically the alleged breach, provided that the breaching party does not cure such breach within the thirty (30) day notice period (if such breach is capable of being cured); or (ii) if, in Service Provider’s reasonable opinion, the assumptions on which the fees were calculated (including the possibility of tax credits for scientific research and/or experimental development) are erroneous or become obsolete in a manner causing a material cost increase for the Project, which increase the Client is not willing to compensate after a thirty (30) days prior written notice of such cost increase. During the notice period of (i) above, the non-breaching party will have the right to suspend its performance.
(b) Either party may terminate the Project immediately by written notice if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due.
(c) Upon termination of the Project by either party, Client will immediately pay Service Provider all fees, costs and expenses owed to or incurred by Service Provider, including, without limitation, any reagents or materials, up to the effective date of such termination. Furthermore, each party will promptly return all data, materials and other property of the other held by it.
(d) Any obligations and duties which by their nature extend beyond the expiration or termination of an applicable Project will survive the expiration or termination of the Project.
8. Warranties.
(a) Each party warrants to the other that (i) it will comply with all applicable laws, rules and regulations in connection with its performance under any particular Project, including regulations pertaining to personal information, when applicable, (ii) that it is a business entity duly formed and in good standing,
(b) The Client acknowledges that the Services and Deliverables provided constitute scientific research and experimental development. Consequently, Service Provider will not guarantee any specific results in performing the Services and the obligations of Service Provider herein are obligations of means rather than of results. However, Service Provider shall exercise reasonable commercial efforts for the Services and Deliverables to substantially comply with any specifications specified in the applicable Quotation.
(c) Client represents and warrants to Service Provider that: (a) Client owns all right, title and interest in and to, or has full and sufficient authority to use, all materials or data furnished by Client (including Client Materials); (b) Client will secure and comply with the terms and conditions of any licensing agreements which govern the use of any Client Materials owned by third parties; (c) the Client Materials do not infringe the patent, copyright, trademark or other Intellectual Property Rights of any party, or constitute libel, slander, defamation, invasion of privacy, or violation of any right of publicity or any other third party rights; (d) Client has or will secure all necessary consents, permissions, clearances, authorizations and waivers for the use of Client Materials; and (e) Client has complied and will comply with all legislation, rules and regulations regarding the use of Client Materials.
(d) The Client warrants that the requested Client Material-derived Deliverables do not and shall ensure any Deliverables do not infringe the patent, copyright, trademark or other Intellectual Property Rights of any party, or constitute libel, slander, defamation, invasion of privacy, or violation of any right of publicity or any other third party rights and that should the Client become aware of any indications of such infringement, it will inform the Service Provider thereof immediately.
(e) SERVICE PROVIDER MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INLCUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY TO COMPLIANCE WITH LAWS APPLICABLE TO CLIENT, INCLUDING CLIENTS USE OF CLIENT MATERIAL AND/OR DELIVERABLES, WHICH WILL BE AND ARE THE SOLE AND EXCLUSIVE RESPONSIBILITY OF CLIENT. SERVICE PROVIDER DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR DELIVERABLES SUPPLIED OR DISCLOSED BY SERVICE PROVIDER OR ITS AFFILIATES TO CLIENT PURSUANT TO THIS AGREEMENT WILL BE ACCEPTABLE TO OR IN COMPLIANCE WITH ANY REGULATORY OR GOVERNMENTAL AGENCY TO WHICH THEY ARE PRESENTED. NO REPRESENTATION OR WARRANTIES HAVE BEEN MADE TO CLIENT THAT THE DELIVERABLES WILL NOT INFRINGE ANY PATENT OR PROPRIETARY RIGHT OF THIRD PARTY OR PARTIES.
9. Debarment Certification.
Service Provider certifies that, to the best of its knowledge, Service Provider is not and will not be using any person presently under investigation by a governmental or regulatory authority in the United States or in Europe (a “Competent Authority”, including without limitation the Food and Drug Administration, Health Canada, and European Medicines Agency) for debarment action, or debarred, in any capacity, in connection with the performance of any Services. Service Provider also certifies that, Service Provider is not and will not be using any personnel for whom convictions subject to debarment have occurred in the last five (5) years prior to the Effective Date of this Agreement in any capacity in connection with the performance of Services. If at any time after execution of this Agreement, Service Provider becomes aware that Service Provider or any other person performing services related to this Agreement has been debarred or is the subject of any action or investigation pending or, to the best of Service Provider’s knowledge, threatened, relating to the debarment of Service Provider or any other person performing services related to an applicable Project, Service Provider hereby certifies that it will promptly so notify Client.
10. Ownership.
(a) To the extent that it does not disclose or contain Service Provider’s proprietary information, technologies, or Background Materials, Service Provider hereby grants the Client a right to use the Deliverables as outlined in the Quote. The ownership of such Deliverables shall not pass to Client, and full legal and beneficial ownership of such Deliverables will remain with Service Provider, unless and until Service Provider has received payment in full for the Services rendered. Upon receipt of full payment for such Deliverables, Service Provider agrees to give Client reasonable assistance, at Client’s expense, to perfect such assignment of such rights, title, and interest.
(b) All Intellectual Property related to the Background Material and the use thereof is, and shall remain, the exclusive ownership of Service Provider at all times. Client shall make no claim of ownership in or to Service Provider’s Background and its Affiliates Background material at any time. The Client will not attempt to reverse engineer, extract, decompile, or disassemble the Background Material for any purposes whatsoever. Client acknowledges that, in the course of providing Services, Service Provider may develop or discover methods, enhancements, and other improvements to Background Material (all such improvement owned by Service Provider are defined as “Service Provider Improvements”). Further, Service Provider shall own all patent rights, copyrights, trade secrets, and other intellectual property rights in and to each Service Provider Improvements (collectively, the “Improvement IP Rights”).
(c) Except as provided in this Section, each party retains all exclusive rights in its knowledge, experience, and know-how (including trade secrets, processes, ideas, concepts, and techniques) acquired in the course of the performance of Services and provision of Deliverables. Nothing herein shall be construed as granting a license to use the Service Provider trademarks or trade names other than to identify Service Provider as the provider of Services for a Project.
(d) Client retains all right, title and interest in and to the information and other content that are submitted to Service Provider, including Client Materials. Client acknowledges that any information deduced from the application of Service Provider’s tools to Client information and materials during the provision of the Services, that is not Client’s proprietary information nor Deliverables (“Derived Materials”), will be part of Service Provider’s Background Materials.
11. Non-exclusivity.
In recognition that Service Provider personnel performing under this Project may perform similar services for other clients, nothing herein will prevent Service Provider from providing services or developing materials that are competitive with those developed or provided under a particular Project, regardless of any similarity between such services or materials. Service Provider will be free to use its general knowledge, skills, and experience, and any ideas, concepts, know-how and techniques used in the course of providing the Services, on other engagements. Service Provider’s other clients will have the right to use materials incorporating such ideas, concepts, know-how and techniques.
12. Defense and Indemnification.
Client will, using counsel of its choice, defend Service Provider in connection with any third party claim against Service Provider (regardless of whether suit is brought) (i) that Client’s use of the Deliverables in a manner not contemplated herein infringe any Intellectual Property Rights, or (ii) arising from or relating to Client’s negligence or violation of applicable law; and Client will indemnify and hold Service Provider harmless for all amounts in connection with such claims finally awarded by a court of competent jurisdiction or agreed to in settlement by Client.
13. Limitation of Liability.
In no event will either party be liable for any indirect, special, punitive, extra-contractual or consequential damages that may arise in connection with any Project hereunder, regardless of the cause of action or characterization of the damages, even if the party sought to be held liable has been advised of the possibility of such damages. Parties will solely be liable on a contractual basis and in no event will either party’s aggregate liability to the other (including for lost profits) exceed the amount of fees actually paid to Service Provider in the twelve (12)-month period immediately preceding the event giving rise to liability. The foregoing limitations of liability will not apply to (a) Client’s obligation to pay fees as due, or (b) either party’s liability arising from its violation of any obligation arising under Section 14 Confidentiality.
14. Confidentiality.
(a) Each party will hold the other party’s Confidential Information in confidence with at least as much care as it holds its own confidential information (and in no event using less than reasonable care), and neither party will disclose any of the other party’s Confidential Information to any third party.
(b) The duties of confidentiality and nondisclosure under any Project will not apply to any information that (i) at the time of disclosure to Recipient, had previously been published or was otherwise publicly available; (ii) is published or becomes otherwise publicly available after having been disclosed to Recipient, unless through the breach by Recipient or any of its Representatives (defined below) of its obligations; (iii) is independently developed by Recipient without reliance on the Confidential information; or (iv) prior to disclosure to Recipient, was already in Recipient’s possession on a non-confidential basis.
(c) Each party may use the Confidential Information solely for purposes of its performance under the applicable Quote, and may disclose such information to its employees and professional advisors (“Representatives”) only on a need-to-know basis, provided that such employees are bound by obligations of confidentiality at least as restrictive as those set forth herein.
(d) Recipient may disclose Confidential Information of Discloser as required by a subpoena, court order or otherwise by law, provided that - to the extent possible - it gives Discloser written notice in advance of such disclosure sufficient to permit Discloser to seek to quash the subpoena or obtain an appropriate protective order and, if nonetheless required to disclose, provides only the minimum Confidential Information necessary to comply with the subpoena, order, or as otherwise lawfully required.
(e) Upon termination of the applicable Project, Recipient will return (or destroy at Discloser’s option) all copies of Confidential Information in its possession, custody, or control, except that Recipient may retain a copy of Confidential Information solely to demonstrate its compliance with its obligations herein, or to comply with its internal document retention policies. However, Recipient is not required to ensure the retrieval and destruction of Information that is stored and retained on Recipient’s and/or its Representatives' computer backup systems as part of their regular backup procedures or to comply with legal requirements. Upon written request of Discloser, Recipient will certify in writing its compliance with this requirement.
(f) Each party’s obligations under this section will survive termination of the applicable Project and will continue in full force and effect with respect to Confidential Information of the other party for five (5) years from the date of disclosure of such Confidential Information, except that nothing herein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law or of a personal information under applicable laws pertaining to personal information. If any Confidential Information contains identifiable personal information, Recipient will treat such Confidential Information as confidential without limit of time and will comply with any applicable laws pertaining to the preservation of such personal information, including, without limitations Europe’s General Data Protection Regulation, Canada’s Personal Information Protection and Electronic Document Act and United States' Privacy Act and Health Insurance Portability and Accountability Act, where and when such laws are applicable.
15. General.
(a) Force Majeure. Delay in performance or non-performance of any obligation contained herein, other than Client's obligation to pay, shall be excused to the extent such failure or non-performance is caused by force majeure. Force majeure shall mean any cause or event preventing performance of an obligation under any Quote which is beyond the reasonable control of the parties, including without limitation physical security or cybersecurity breach (except if such could have been avoided by usual security measures), fire, flood, internet, telephone or power shortage or other similar events, mechanical breakdown, sabotage, shipwreck, embargo, explosion, strike or other labor trouble, accident, riot, acts of governmental authority (including, without limitation, act based on laws or regulations now in existence as well as those enacted in the future) and public health crisis, such as a plague, epidemic or pandemic, acts of God. The party prevented to perform by force majeure shall promptly provide notice to the other party, explaining in detail the full particulars and the expected duration thereof and it shall use its commercially reasonable efforts to remedy the interruption or delay if it is reasonably capable of being remedied.
(b) Governing Law; Arbitration. All Quotes or Projects shall be construed, and the respective rights of the Parties determined, according to the substantive laws of the State of Delaware notwithstanding its provisions governing conflict of laws. The UNCITRAL Convention for the International Sale of Goods, as well as any other unified law relating to the conclusion and implementation of contracts for the international sale of goods, shall not apply. The Parties shall attempt, in good faith, to resolve through negotiations any controversy, claim, or dispute. In the event that negotiations are not successful, the controversy, claim or dispute shall be submitted to arbitration. Such arbitration shall take place in Boston, Massachusetts (USA), and shall proceed in accordance with the laws of the State of Delaware, and the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration proceeding shall be in front of a single arbitrator, selected by the AAA in an impartial manner, who shall have complete authority to render any and all relief, legal and equitable, and appropriate under Delaware law which shall be binding upon the Parties regardless whether one of the Parties fails or refuses to participate. The language of such proceeding shall be in English, and a record and transcript of the proceeding shall be maintained. Any award shall be made in writing and in reasonable detail, setting forth the findings of fact and conclusion of law supporting the award. The decision shall be enforceable by any competent court of law, provided that the decision is supported by substantial fact and is without material error of law. All costs of such arbitration, except expert fees and attorneys’ fees, shall be shared equally by the Parties
(c) Notices. All notices or other communications that are required or permitted must be in writing and will be sufficient if delivered (i) personally, (ii) sent by nationally-recognized overnight courier or by certified mail, postage prepaid, return receipt requested, or (iii) transmitted by e-mail, with acknowledgement of receipt.
(d) Publicity. Service Provider may publish Client’s name in factual listings of Service Provider’s clients.
(e) Relation of the Parties. The parties agree that each is acting as an independent contractor and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose.
(f) No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, will not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other provision of these T’s and C’s. All waivers must be in writing and signed by the party waiving its rights.
(g) Severability. If any arbitrator or court of competent jurisdiction finds any portion of any provision of these T’s and C’s to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable. All other provisions of these T’s and C’s and all other parts of said provision will remain unaffected.
Entire Agreement. Except if the parties have entered into a mutually executed Master Service Agreement, these T’s and C’s constitute the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements, proposals, negotiations, representations, or communications relating to the subject matter.