|
CONDITIONS OF TRADING OF
EPITOPE INFORMATICS LIMITED
1. Definitions
In the Agreement the following terms shall
have the following meanings:
1.1 ‘Agreement’: the agreement between ePitope Informatics
and the Client for provision of the Service, of which the Conditions
and the Order Form each form part (reference to “Agreement” in these
Conditions and in the Order Form shall not imply that an agreement
has been reached, the process for conclusion of agreements being set
out in the Order Form);
1.2 ‘Conditions’: the provisions contained in these
conditions which shall be incorporated into the Agreement in their
entirety;
1.3 “e-mail”: the transmission of a message or messages
by electronic mail over such communications networks as are
described in the Order Form;
1.4 ‘ePitope Informatics’: ePitope Informatics Limited,
registered office Top Floor, 11 Market Street, Hexham, Northumberland, NE46 3NS, United Kingdom, registered in England and Wales
under number 3945310;
1.5 ‘Order Form’: the form accessed on the ePitope
Informatics website and completed by the client detailing
(among other items) the Services;
1.6
‘Payment’: payment as specified in the Order Form;
1.7
‘Protein Sequence’: the protein sequence set out by the
Client in the Order Form or otherwise submitted by the Client to
ePitope Informatics in a manner permitted in the Order Form;
1.8 ‘Report’ means a report
of the results of the carrying out of the Service of the type
selected by the Client in the Order Form;
1.9 ‘Service’: the
analysis (and any other) service specified in the Order Form;
2.
Terms
2.1 Subject to any
variation under clause 2.2 below the Agreement will be on the terms
set out below and in the Order Form.
2.2 Any variation to the
Agreement, and any representations about the Services, shall have no
effect unless expressly agreed by e-mail on behalf of ePitope
Informatics.
3.
ePitope Informatics’ obligations
3.1
ePitope Informatics undertakes to carry out during the
continuance of the Agreement the Service.
3.2
ePitope Informatics warrants that the Service shall be
carried out by ePitope Informatics with reasonable care and speed
and shall be carried out only by properly qualified staff of ePitope
Informatics, but the Client acknowledges that
3.2.1
the Service is of a predictive, rather than of a definitive,
nature;
3.2.2
(without prejudice to the provisions of clause 7.2.2) ePitope
Informatics cannot, and therefore does not, predict whether the
Protein Sequence and/or any ePitope sequence predicted by the
ePitope Informatics is or may be dangerous or in any way harmful);
3.2.3
ePitope Informatics’ analysis does not include a review of all or
any previously published material relating to the Protein Sequence;
3.2.4 the
liability of ePitope Informatics shall be limited in the manner set
out in clause 7.
3.3
The Report will be prepared and submitted to the Client with
all reasonable speed in such form or manner and in such detail as is
set out in the Order Form.
ePitope Informatics may issue an invoice for the Services
contemporaneously with the Report.
4.
The Client’s Obligations
4.1 Details of the
Protein Sequence in respect of which the Service is to be provided
shall be provided by the Client in such form and/or manner as is
indicated on the Order Form (and/or otherwise as may reasonably be
required by ePitope Informatics from time to time);
4.2
The Client warrants to ePitope Informatics that all
4.2.1
information supplied by it to ePitope Informatics is complete
and accurate in all respects, and acknowledges that ePitope
Informatics has no liability for or in respect of such information. If for any reason any
information provided by the client proves to be inaccurate in any
manner or particular then (without prejudice to any remedy which
ePitope Informatics may have in respect of breach of this warranty)
ePitope Informatics shall in any event be entitled to the Payment
(so that any Services provided by ePitope Informatics in respect of
corrected information shall be the subject to a separate agreement
between ePitope Informatics and the Client);
4.2.2
information which it sends to ePitope Informatics, and the
media on or by which such information is sent, is free of so-called
“viruses”, “worms” and “bombs” and of any other material which might
damage (which expression includes detrimental modification) any
property or asset of or used by ePitope Informatics.
4.3
The Client shall indemnify and keep indemnified ePitope
Informatics against all and any damage, loss, liability or costs
suffered by ePitope Informatics at any time in consequence of or
related to any dangerous or harmful (whether in themselves or in any
use or application) properties or characteristics of the Protein
Sequence or any part of it (whether or not known to be such by the
Client and/or by ePitope Informatics).
4.4
The Client permits ePitope Informatics to use all information
(including the Protein Sequence) supplied by the Client to ePitope
Informatics for the purpose of carrying out the Service.
4.5
The Client shall acknowledge to ePitope Informatics receipt
of the Report by using its e-mail “Reply” facility or similar to
respond to an e-mail message from ePitope Informatics advising of
delivery of the Report.
4.6 The Client shall pay to ePitope Informatics
in respect of the Service the Payment, which shall be made no later
than the day, which is 30 days after the date of the invoice. Payment shall be made in the
manner specified in the Order Form.
4.7 If payment in full of any invoice is made
within fourteen days of its date, ePitope Informatics will allow a
prompt payment discount of 5% (five per cent) of the charges to
which that invoice relates.
4.8 If the Client fails to pay on the due date
for payment ePitope Informatics may (without prejudice to its other
rights or remedies) charge the Client interest on all sums overdue
at the rate of 5% per annum above the base rate of the National
Westminster Bank Plc (U.K.) from time to time, from the due date for
payment to the date of actual payment.
4.9 If the Client fails to comply with any of the
terms for payment for more than seven days ePitope Informatics may
suspend performance of its obligations under the Agreement (and
under any other agreements between ePitope Informatics and the
Client) without incurring any liability to the Client (but the
Client shall remain liable in respect of its obligations under the
Agreement and any other agreements between ePitope Informatics and
the Client).
4.10 The provisions of this clause 4 shall survive any
termination of this Agreement.
5.
VAT
5.1 All sums payable under the Agreement unless
otherwise stated are exclusive of U.K. Value Added Tax (in this
clause (“VAT”)) and of other duties or taxes.
5.2 Any VAT or other
duties or taxes payable in respect of such sums shall be payable in
addition to such sums.
5.3 If the Client is based in the United Kingdom
and considers itself legitimately exempt from payment of VAT, it
shall submit to ePitope Informatics contemporaneously with its order
a completed VAT exemption form.
If the Client is based in the European Union (outside the
United Kingdom) and the Report is delivered within the European
Union but outside the United Kingdom, the Client shall submit its
VAT registration number on the Order Form.
6.
Publication
ePitope Informatics shall own and retain
copyright and all and any other intellectual property rights in all
results of the Services (including the Report) and (subject to the
making by the Client of the Payment) grants to the Client a personal
licence to use and reproduce them:
6.1
for use in the normal course of the Client’s internal
business;
6.2
in research undertaken by the Client (with appropriate
acknowledgement for ePitope Informatics);
6.3 by reproduction
of diagrams in the Report in professional publications (with
appropriate acknowledgement for ePitope Informatics)
but not otherwise, and for the avoidance of
doubt (and notwithstanding any other provision in this clause) the
Client shall not dispose of or licence in any way for payment of any
nature the Report or any part of the Report.
7.
Liability
7.1
The following provisions set out ePitope Informatics’ entire
liability to the Client (including any liability for the acts and
omissions of its sub-contractors) in respect of any breach of
7.1.1
contractual obligations;
7.1.2
any tortious act or omission;
7.1.3
any action arising out of misrepresentation
arising out of or in connection with this Agreement.
7.2
As stated in clause 2.3 above ePitope Informatics warrants
(subject to the qualifications in clause 2.3) that it shall carry
out the Service with reasonable care and skill and by properly
qualified staff of ePitope Informatics but:
7.2.1
ePitope Informatics does not warrant or represent that any
prediction it may make in or otherwise relating to the Service will
be accurate in whole or part;
7.2.2
ePitope Informatics does not represent or warrant that the Protein
Sequence or any part of it or any product or result of the Service
is not harmful or toxic or otherwise dangerous;
7.2.3
to the maximum extent possible all conditions and warranties
otherwise implied by statute or common law or otherwise into this
Agreement or relating to the Services are excluded.
7.3
ePitope Informatics shall not be liable under this Agreement
or in tort or otherwise to the extent that such liability would
arise from inaccuracies or omissions in any information supplied by
the Client to ePitope Informatics.
The provisions of this clause 7.3 are without prejudice to
the obligations of the Client in clause 4.3 above.
7.4
ePitope’s aggregate liability for all claims arising from
this Agreement shall not exceed the Payment.
7.5
ePitope Informatics shall not be liable to the Client for any
direct or indirect loss of profit or loss of business or for any
other indirect or consequential loss.
7.6
Notwithstanding anything to the contrary in this Agreement
ePitope Informatics’ liability to the Client for death or personal
injury caused by the negligence of ePitope Informatics, its
employees, agents or sub-contractors shall not be limited, save that
nothing in this clause shall confer any remedy on the Client to
which it would not otherwise be entitled.
7.7
Where the Client uses the Report or any of its contents, or
any other data supplied to it by ePitope Informatics, in the
manufacture, supply or distribution of any goods or in the provision
of any service (including, but without limitation, research work
and/or services of any nature and for any purpose), then the Client
shall indemnify and hold harmless ePitope Informatics from and
against all loss, damages costs and expenses awarded against or
incurred by ePitope Informatics in respect of such use by the Client
or arising out of the manufacture, supply or distribution of those
goods or the provision of that service.
7.8
The provisions of this clause 7 shall survive any termination
of this Agreement.
8.
Confidentiality
8.1
While ePitope Informatics shall use all reasonable endeavours
to keep confidential information concerning the Protein Sequence
which it receives from the Client (and will use its reasonable
endeavours to ensure that such information is not held on the server
hosting the ePitope Informatics website for any longer than is
reasonably practicable), ePitope Informatics shall not be liable for
or in respect of any loss to the Client caused or permitted by any
breach by any third party of, or any failure of any electronic
systems or associated security measures (including encryption
systems) used by, ePitope Informatics from time to time (whether in
respect of its Internet web site or otherwise), use of e-mail
(including, but without limitation, misdirection of e-mails) or
misdirection of postal and/or other correspondence (such as
correspondence sent by Courier Service) to or from the Client. The provisions of this
clause 8.1 are without prejudice to those of clause 7.
8.2
The Client acknowledges and agrees that the Protein Sequence
shall be submitted by ePitope Informatics to databases outside the
control of ePitope Informatics in the performance of the Services
(for database searching) and that ePitope Informatics shall not be
liable to the Client in respect of any disclosure of information to
a third party during or as a result of such database searching.
8.3
ePitope Informatics’ obligation of confidentiality in clause
8.1 shall not in any event apply to any information which (i) is
already in the public domain when disclosed to ePitope Informatics
by the Client, (ii) comes into the public domain other than by
breach of this agreement by ePitope Informatics, (iii) is used in
the enforcement of this Agreement, or is ordered to be disclosed by
any Court or competent authority or (iv) was in ePitope Informatics’
possession before it was disclosed to ePitope Informatics by the
Client.
9.
Force Majeure
ePitope Informatics shall not be liable for
any delay in performing its obligations if the delay is caused by
circumstances beyond ePitope Informatics’ reasonable control (which
shall include, without limitation, any failure of or suspension of
service by the host from time to time of ePitope Informatics’
website), and performance of ePitope Informatics’ obligations shall
be suspended during the period that such circumstances exist.
10.
Termination
10.1
Either party may terminate the Agreement by notice given by e-mail
to the other party:
10.1.1
if the other party commits any material breach of the Agreement;
10.1.2
if the other party (being a body corporate) has an administrative
receiver or receiver appointed over its assets, enters into
liquidation, is subject to an administrative order, makes any
composition with its creditors (or any analogous procedure occurs),
or ceases or threatens to cease to carry on business.
10.2
In addition to its rights under Clause 10.1, ePitope
Informatics may terminate the Agreement by notice by e-mail if the
Client:
10.2.1
(being an individual) has a bankruptcy order made against him
or makes any arrangements or composition with his creditors (or, if
the Client is a partnership, any individual is subject to any of the
foregoing) (or any analogous procedure occurs);
10.2.2 fails
to make any Payment on the due date for that Payment.
11.
Termination consequences
In the event of the Agreement being
determined for any reason:
11.1
the Client shall pay to ePitope Informatics the Payment due,
without set-off;
11.2 the parties shall each be entitled to exercise any one or
more of the rights and remedies provided for in the Agreement and
accrued prior to termination, the termination of the Agreement shall
not affect or prejudice such rights and remedies and the parties
shall be and remain liable to perform all outstanding liabilities
under the Agreement notwithstanding that one of the parties may have
exercised one or more rights and remedies under it;
11.3 any right or remedy to which
either party is or may become entitled under the Agreement or in
consequence of the other’s conduct may be enforced from time to time
separately or concurrently with any right or remedy given by the
Agreement or now or afterwards provided for and arising by operation
of law so that such rights and remedies are not exclusive of the
other or others but are cumulative.
12.
General
12.1 No delay or indulgence by either
party in enforcing the Agreement shall prejudice or restrict its
rights. A waiver of its rights shall not operate as a waiver
of any subsequent breach.
12.2 The Client shall not assign or
transfer the Agreement or any of its rights or obligations under it
without the prior consent (which, if given, shall be given by e-mail
to the Client) of ePitope Informatics.
12.3 The parties do not intend that any
provision of the Agreement shall be enforceable by any third party.
12.4 Save in the presence of fraud, the
Agreement supersedes all prior agreements, arrangements and
understanding between the parties and constitute the entire
agreement between the parties relating to the Service. The
Client warrants to ePitope Informatics that the Client has not been
induced to enter into the Agreement by any prior representations
whether oral or in writing, except as specifically contained in the
Agreement. The Agreement shall apply to the exclusion of, and
shall prevail over, any terms and conditions contained or referred
to in any documentation submitted (in whatever form, and by whatever
method) by the Client or in any correspondence or otherwise.
12.5 If any provision of the
Agreement is found by any court or administrative body of competent
jurisdiction to be invalid or unenforceable, then the invalidity or
unenforceability shall not affect the other provisions of the
Agreement and all provisions not affected shall remain in full force
and effect. Both parties will attempt to substitute any such
provision with a valid or enforceable provision, which achieves to
the greatest extent possible the economic, legal and commercial
objectives of the invalid or unenforceable provision.
12.6 Unless otherwise specified in the
Agreement, all communications between the parties shall be sent by
e-mail to the recipient’s e-mail address set out in the Agreement or
otherwise notified by e-mail pursuant to this clause. Communications
shall be deemed to have been received on the working day following
the date of transmission of the e-mail in question (whether or not
actually received by the addressee).
12.7 The formation, existence,
performance, validity and all aspects of the Agreement or of any
term of the Agreement shall be governed by English law. The
English courts shall have jurisdiction to settle any disputes which
may arise out of or in connection with the Agreement. The
jurisdiction agreement in this clause is made for the benefit of
ePitope Informatics, which accordingly retains the rights to bring
proceedings in any other court of competent jurisdiction. The
parties agree to submit to the said jurisdiction. |
