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, 7 Charlton Close, Beaumont Park, Hexham, Northumberland, NE46 2QF, 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 and any related protein structure 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. In the event of any conflict between the terms of this Agreement and the Order Form, the terms of this Agreement shall prevail.

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 published material relating to the Protein Sequence beyond what is included in the Report;

    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 agrees that it shall pay for the Services provided to Client that are based on the Information supplied by the Client. If the Client makes a mistake in the Information, and ePitope has started or completed the Services, Client shall pay for the work performed. If Client makes a correction and ePitope has to redo the work, ePitope will issue a new quote before it carries out the work, and Client and ePitope will decide whether to enter into a new Agreement for the new work.

4.3     The Client and ePitope Informatics agree that they will consult with each other and agree on the appropriate mode of information transfers to avoid contamination of e-mail by viruses or other items that would be harmful to each other’s internal informatic systems.

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 the Client fails to comply with any of the terms for payment for more than thirty days ePitope Informatics may suspend performance of its obligations under the Agreement without incurring any liability to the Client (but the Client shall remain liable in respect of its obligations under the Agreement). Both parties shall remain liable in respect of their respective obligations under any other agreements between ePitope Informatics and the Client.

4.8   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 it conceives or develops during the work it performs while providing the Services relating solely to ePitope Informatics’ methods and protocols. All results of the Services (including the Report) and (subject to the making by the Client of the Payment) delivered to the Client shall be owned by the Client. ePitope Informatics shall not publish the results of the Services (including the Report) without the Client’s prior written approval.

6.1     for The Client agrees that it will acknowledge ePitope Informatics as the source for the Report, and for diagrams in the Report in professional publications.

6.2     The Client agrees (notwithstanding any other provision in this clause) that it 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 the parties’ entire liability to each other (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 and The Client both do 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     Neither party shall 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 to each other. 

7.4     Each party’s aggregate liability for all claims arising from this Agreement shall not exceed the Payment.

7.5     Neither party shall be liable to each other 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 the parties’ liability to each other for death or personal injury caused by the negligence of the party, its employees, agents or sub-contractors shall not be limited, save that nothing in this clause shall confer any remedy on the other party 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 thirty days after the due date for that Payment and after having received notice from ePitope that Payment had not occurred on the normal due date.

10.3   The Client may terminate the Agreement by notice by e-mail if ePitope Informatics is delivering the Report later than fifty percent of the time agreed upon for delivery.

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 for the work
          performed and delivered at the time of the termination notice,

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.