Terms & Conditions
These general terms and conditions for services (GTC) form part of the Agreement between Nagi Bioscience SA (CHE-387.917.936), Rue des Jordils 1A, EPFL Innovation Park, Bâtiment M, 1025 Saint-Sulpice, Switzerland (Service Provider) and any of its customers (Customer, together with Service Provider, the Parties). If not otherwise defined in these GTC, capitalized terms contained herein shall have the meaning given to them in the Statement of Services.
1.1. These GTC apply to the Services specified in any Statement of Services entered among Service Provider and Customer.
2. Services
2.1. In General. Subject to payment by Customer of any fees agreed in the Statement of Services, Service Provider agrees to provide the Services provided for in such Statement of Services.
2.2. Additional Services. The provision of any services which are not in scope of a Statement of Services for specific Services is at Service Provider’s free discretion.
2.3. Service Provider’s Staff. Service Provider shall only assign its employees or contractors who have the knowledge and technical skills to perform the Services in a satisfactory manner (the Staff). Service Provider shall procure that the Staff at all times acts in material compliance with the terms of this Agreement.
2.4. Subcontracting. Service Provider may delegate the performance of any Services to one or more subcontractors. Upon request, Service Provider shall provide Customer with a complete and up-to-date list of all subcontractors involved in the performance of the Services and Service Provider shall remain responsible for the Services performed by any subcontractors, in accordance with the Agreement.
2.5. Deliverables. Service Provider will provide the results of its performance of the Services to Customer, including but not limited to data, assays, reports and other deliverables as set forth in each Statement of Services (the Deliverables). Service Provider shall use its best efforts to deliver the Deliverables in accordance with the timetable established in such Statement of Services. Service Provider will notify Customer if Service Provider determines that there are likely to be substantial delays. Customer acknowledges that, due to the nature of the Services, Service Provider cannot guarantee that any Deliverable will be developed or delivered. Unless explicitly specified in a Statement of Services, Service Provider shall determine the format and transmission of any Deliverables.
2.6. Acceptance. If Service Provider fails to carry out any of the Services in accordance with a relevant Statement of Services, Customer will have the exclusive right to request that Service Provider reperform any defective part of the Services by way of remedial Services, at no additional charge and within a reasonable time, provided defect in the performance of the Services is solely attributable to Service Provider. If the Statement of Services has a specified Deliverable, Customer shall, within 10 business days of receipt, review such Deliverable and either (i) notify Service Provider of its acceptance or (ii) consult with Service Provider to agree over any reasonable amendments thereto. If Customer has neither notified Service Provider of its formal acceptance nor consulted with Service Provider to agree the amendments to be made to any Deliverable within 10 business days after delivery to Customer, the Deliverable shall be deemed accepted by Customer. The foregoing shall apply to any substituted, redone or remedial Services and/or Deliverable provided by Service Provider under the Agreement.
2.7. Non-exclusivity. Customer acknowledges that all Services are provided on a non-exclusive basis, and Service Provider reserves all rights for itself to provide third parties with deliverables that are identical or similar to Deliverables, including results or work product generated using materials that are similar or identical to Materials, provided however that Service Provider shall not use any Customer Background IP, Work Product, Confidential Information disclosed by Customer or Materials to perform Services for any third party.
3.1. Diligence. Service Provider shall provide the Services to the best of its ability using all reasonable skill and care. Service Provider shall have an obligation of means and it shall not have any obligation to deliver a specific result unless a Deliverable is specifically described in a Statement of Services.
3.2. Information. Service Provider shall provide Customer on request with all reasonable information and advice pertaining to the performance of the Services.
4. Independent Contractor Status
4.1. Principle. Service Provider shall perform all Services as an independent contractor and not as an employee or agent of Customer. Service Provider shall under no circumstances be considered as an employee of Customer.
4.2. No Agency. Unless otherwise provided for in the Statement of Services, Service Provider shall not have the capacity to negotiate with any third party on behalf of Customer and/or to bind Customer in contract or otherwise and shall not represent itself as representative of Customer. Any offer or agreement shall be entered into or submitted by Customer
4.3. Time Spent. In performing the Services, the amount of time devoted by Service Provider on any given day will be entirely within Service Provider's control, and Customer will rely on Service Provider to put in the amount of time necessary to fulfil the requirements of this Agreement.
4.4. Staff Instructions. The Staff will remain for the entire term of this Agreement under the exclusive control and supervision of Service Provider. Accordingly: (i) the Staff will report to Service Provider only, (ii) the Services Provider shall be exclusively responsible to instruct, supervise and control the Staff, and (iii) Customer shall not give any instruction to the Staff directly.
4.5. Trade and Service Marks. Neither Party shall use the trade names, trademarks, service names or service marks of the other Party without its prior written approval.
5. Financial Terms
5.1. Fee. Customer shall pay to Service Provider any fees agreed in the Statement of Services or, if no Statement of Services has been executed, otherwise agreed with Service Provider (the Fees).
5.2. Retainer. Service Provider reserves the right to work on a retainer basis, in which case the retainer shall not exceed the expected amount of the total Fees.
5.3. Invoice. Unless otherwise provided for in the Statement of Services, Service Provider shall invoice Customer monthly and shall detail in its invoice the number of hours / days performed by Service Provider during the relevant month for which the invoice is issued.
5.4. Payments. Payments shall be made pursuant to the terms of this Agreement to Service Provider within 30 days of receipt by Customer of Service Provider’s invoice, by wire transfer to Service Provider’s bank account, as indicated from time to time to Customer.
5.5. Termination. In case of termination by Customer of a Statement of Services prior to completion of the Services by Service Provider under a relevant Statement of Services, any amounts already paid by Customer to Service Provider under such Statement of Services shall be retained by Service Provider and Customer shall be liable for the full amount due under the relevant Statement of Services.
5.6. Expenses. Customer shall reimburse Service Provider for any reasonable costs and expenses incurred in relation to the provision of the Services, provided that such costs and expenses are detailed on the corresponding invoice and accompanied by supporting documentation.
5.7. Currency. Unless otherwise agreed by the Parties in writing, all payments will be invoiced and paid in Swiss francs, regardless of the location in which the Services are performed.
5.8. Taxes. If not specifically stated otherwise, Fees and rates indicated by Service Provider shall be exclusive of all taxes (in particular, VAT) if and as applicable.
5.9. No Offset. Customer may not offset amounts owed by Service Provider to Customer against any Fees due to Service Provider, subject to Service Provider’s express prior written approval.
6. Other Customer’s Obligations and Indemnity
6.1. Customer shall provide to Service Provider the documents and information stated in the Statement of Services, as well as all data and information reasonably required by the latter for the proper performance of the Services, as may be relevant for the performance of the Services, in Service Provider’s opinion.
6.2. If the Services are to be performed via a remote access, Customer shall make available to Service Provider all the necessary network connections and access authorizations, at its own cost and expense.
6.3. If Services are to be performed onsite, Customer will permit Service Provider reasonable access to the relevant site(s) and installations.
7.1. Materials. Customer may provide certain Materials to Service Provider in connection with the Services (the Materials). Service Provider shall use utmost care in safeguarding, inventorying and handling the Materials and will not use Materials for any purpose other than as permitted by, and necessary for the performance of the Services. Customer will provide Service Provider with all information relevant to the safe and authorized use, storage or handling of Materials, other than routine laboratory risks for materials of the same nature. Service Provider shall retain control of the Materials and shall maintain their confidentiality and shall not distribute or release the Materials to any person or entity other than employees and agents of Service Provider who are: (a) under Service Provider’s direct supervision and control and (b) have a need to access the Materials in connection with the Services and (c) are subject to confidentiality and non-use obligations. Service Provider will retain all Materials during the conduct of the Services and, upon Customer’s written request and expense, will return unused Materials to Customer. Absent such request, Service Provider will properly dispose of such unused Materials, at Customer's expense should such expense be incurred.
7.2. Ownership of Derivatives, Progeny and Modifications. All right, title and interest in and to any substance that constitutes (i) an unmodified functional subunit of the Materials or a product expressed by the Materials (Derivatives), (ii) an unmodified descendant from the Materials created as a result of the Services, such as virus from virus, cell from cell, or organism from organism (Progeny) or (iii) a substance created as a result of the Services that contains or incorporates any of the Materials, Derivatives or Progeny (Modifications), shall vest exclusively in Customer, and Service Provider hereby assigns all right, title and interest in and to Derivatives, Progeny and Modifications to Customer insofar as permissible under applicable law.
7.3. Provision. Customer shall provide the Materials (if any) specified in the Agreement, in sufficient amounts for Service Provider to perform the Services and at Customer's cost and expense. Customer shall notify Service Provider in writing of any known or potential hazards associated with the Materials and such notification will include any applicable material safety data sheets. Service Provider shall bear no liability should any Deliverables present defects or not be fit for purpose due to lack of instructions by Customer in use of the Materials and Customer shall bear any cost or expense resulting from such lack.
7.4. Indemnity. Customer will defend, indemnify, save and hold harmless Service Provider and its directors, officers, employees and agents (Service Provider Indemnified Parties) from and against any costs, claims, demands, suits, actions, causes of action, losses, damages, fines, liabilities and expenses (including without limitation reasonable legal expenses) incurred or suffered by the Service Provider Indemnified Parties (Indemnified Losses) resulting directly from any damage or any third party claims, actions or demands (whenever arising) against the Service Provider Indemnified Parties (Service Provider Claims) which arise directly out of or which are directly attributable to:
a) the research, development, manufacture, distribution, use, sales or other disposition by Customer, or any third party acting on behalf of Customer, of the Materials or any product containing the Materials upon which the Services were performed under the Agreement and relevant Statement of Services;
b) any defects in the Materials provided by Customer to Service Provider; and
c) any infringement by the Service Provider Indemnified Parties of third party claimants' intellectual property rights by Service Provider Indemnified Parties which occurred as a result of the Service Provider Indemnified Parties using the Materials to carry out the Services, provided that such Services were carried out in accordance with the terms of the Agreement and relevant Statement of Services.
EXCEPT in so far as such Indemnified Losses arise from any act, omission, negligence, wilful misconduct or neglect of any Service Provider Indemnified Parties and PROVIDED THAT Customer is given written notice of any Service provider Indemnified Parties’ claim under the indemnity in this Section within 30 days of the date of notice of the third party's claim to the relevant Service Provider Indemnified Party and provided also that Customer is promptly given in-formation, reasonable assistance and sole authority to defend and/or settle the claim, it being specified that any settlement of the claim shall require Service Provider's prior written consent, not to be unreasonably withheld.
8. Intellectual Property
8.1. Service Provider Background IP. As between the Parties, Service Provider shall retain all rights, title and interest in all inventions, discoveries, trade secrets and proprietary methods, and all technology, equipment, materials, works of authorship, designs, system designs, processes, techniques, formulations, measurement methods, know-how, computer programs, databases, trade secrets, designs, marketing plans, product plans, design plans and business strategies, and in each case whether patentable or not, or susceptible to copyright, trade secret, or any other form of legal protection under applicable law, and all right, title and interest in and to such items, including, without limitation, all copyrights, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights throughout the world and developped by it prior to signing a relevant Statement of Services (Service Provider Background IP). Subject to Section 8.6, Customer shall not obtain any licenses, intellectual property or other ownership rights in any Service Provider Background IP.
8.2. Service Provider Background IP Improvement. Service Provider shall retain all rights, title and interest in any development, improvement, variation or enhancement of Service Provider Background IP that is created or developed by Service Provider and/or its staff and/or sub-contractors in the course of carrying out the Services, in particular methods or processes used or developed by or for Service Provider in or for the provision of Services, or any documentation, records, materials (other than Materials), specimens, concepts, information, inventions, improvements, designs, programs, formulas, know-how, or writings related thereto (the Service Provider Background IP Improvement).
8.3. Customer Background IP. As between the Parties, Customer shall be and remain the sole owner of all intellectual property rights – including copyrights, trade secrets, trademarks, trade names, designs, patents, know-how and any other proprietary rights – developed or owned by Customer prior to or during the term of the Agreement (Customer Background IP). Service Provider hereby waives any right to Customer Background IP. As between the Parties, Materials, and any Derivatives, Progeny or Modifications thereof, shall remain the sole and exclusive property of Customer.
8.4. Right to use. If and to the extent Service Provider, for providing the Services, needs to access and/or to use any Customer Background IP, Customer hereby grants to Service Provider a non-exclusive, non-transferable, non-sublicensable and revocable license to access and/or use such Customer Background IP solely for the purpose of and to the extent necessary to perform the Services. Provided that Service Provider uses such resources only as permitted under this Section 8.4, Customer shall fully indemnify Service Provider against any claims by the relevant third parties.
8.6. Licences. Subject to the payment of all the Fees and insofar as necessary for Customer to commercially exploit any Work Product, Service Provider shall grant Customer (i) a royalty free, worldwide, non-exclusive, non-transferable, non-sublicensable and revocable license to use Service Provider Background IP and Service Provider Background IP Improvement and (ii) a royalty free, worldwide, exclusive, transferable, sublicensable and irrrevocable license to use Work Product, for the sole purpose of commercially exploiting such Work Product.
9. Service Provider Warranty
9.1. The Services and any Work Product are provided AS IS and AS AVAILABLE by Service Provider.
9.2. To the maximum extent permitted under applicable law, Service Provider expressly disclaims all warranties with respect to the Services and any Work Product, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights.
9.3. The use of the Services or any Work Product is entirely at Customer’s own risk.
10. Limitation of Liability
10.1. Service Provider’s liability under the Agreement, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.
10.2. Without prejudice to the generality of the foregoing, to the extent permitted under applicable law, Service Provider disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether it has been advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort or otherwise.
10.4. The exclusions and limitations under this Section 9.3 shall extend to Service Provider’s directors, officers, employees, agents, representatives and auxiliaries.
11. Data Protection
11.1. The Parties acknowledges that, through its use of the Services, certain personal data may be collected and processed by Service Provider and may be transferred to third parties, in Switzerland or abroad, for providing the Services to Customer.
11.2. Customer shall act as the “data controller” with respect to all personal data processed in connection with this Agreement. Therefore, Customer confirms and shall ensure that the collecting and processing of personal data by means of the Services are at all times compliant with all applicable data protection and privacy laws and regulations. Service Provider shall act as a “data processor” and under the responsibility of Customer with regard to the processing of any personal data generated through the use of the Services. Service Provider shall take appropriate measures to protect such personal data in accordance with applicable laws and regulations.
11.4. Service Provider confirms that, as “data processor”, it shall, to the extent so required under applicable data protection laws:
a) process and transfer the personal data only on documented instructions from Customer, unless Service Provider is required to otherwise process or transfer the personal data under applicable laws, in which case it shall provide prior notice to Customer, unless the law prohibits such notice on important grounds of public interest;
b) ensure that the persons acting under its authority who have access to the personal data (i) commit to confidentiality or are under an appropriate statutory obligation of confidentiality and (ii) do not process the personal data except on instructions from Customer, unless they are required to otherwise process or transfer the personal data under applicable laws, in which case prior notice shall be provided to Customer, unless the law prohibits such notice on important grounds of public interest;
c) implement technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing.
d) at the request of Customer and at the latter’s expense, provide reasonable assistance to enable Customer, to the extent necessary for Customer to discharge its own obligations under applicable data protection laws, to (i) respond to requests from individuals to whom the personal data relates, (ii) implement technical and organisational security measures to ensure the security of the processing, (iii) notify personal data breaches to the competent supervisory authority and communicate the personal data breach to the individuals to whom the personal data relates, (iv) conduct data protection impact assessments and consult the supervisory authority on that basis;
e) upon termination of the Agreement, at the option of Customer and at the latter’s expense, either (i) delete or (ii) return the personal data to Customer and delete existing copies, it being understood that in both cases Service Provider shall be entitled to retain a copy of such personal data to the extent it is required to store the personal data under applicable data protection laws;
f) at the request of Customer and at the latter’s expense, provide all information necessary to demonstrate compliance with this clause as well as allow and contribute to audits and inspections conducted by Customer or another auditor mandated by Customer;
g) immediately inform Customer if, in its reasonable opinion, an instruction infringes applicable data protection laws;
h) notify Customer as promptly as reasonably practicable after becoming aware of a security breach affecting the personal data;
i) maintain a written record of all categories of processing activities carried out on behalf of Customer, containing any required information.
11.5. Customer expressly acknowledges and agrees that its personal data processed by Service Provider within the frame of providing the Services, may be accessed and processed by Service Provider resources located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in Customer’s jurisdiction.
11.6. Customer hereby provides a general written authorisation to Service Provider to engage other processors to process the personal data. Service Provider shall inform Customer of any addition or replacement of processors, giving Customer the opportunity to object to such changes. If Customer reasonably objects to such change, Service Provider shall refrain from making that addition or replacement and shall be entitled to terminate this Agreement. Where Service Provider engages another processor, Service Provider shall ensure that the obligations set out in this clause are imposed on that processor by way of a written contract.
12.1. Definition. For purposes of this Agreement, Confidential Information shall mean, by way of illustration and not limitation, all information and/or Materials disclosed by either Party (as the context requires, the Disclosing Party) to the other (as the context requires, the Receiving Party), whether or not in writing, of a private, secret or confidential nature, owned, possessed or used by the Disclosing Party, concerning the Disclosing Party's business, business relationships or financial affairs, including, without limitation, any Invention, vendor information, customer information, trade secret, process, research, report, technical or research data, know-how, computer program, technology, methods, techniques, formulas, compounds, projects, developments, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost, employee list. Confidential Information will not, however, include any information which: (i) was made public without restriction prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known without restriction after disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s records.
12.2. Confidentiality and Use. The Receiving Party shall not, and shall cause its employees and representatives to not, at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the Disclosing Party, except to third parties only to such extent as such third parties have a legitimate need to know such Confidential Information for the performance of the Receiving Party’s obligations under the Agreement, or (b) use, reproduce, or copy any Confidential Information of the Disclosing Party, except as necessary to perform or in connection with the performance of the Services or as otherwise set forth in the Statement of Services.
12.3. Ownership. All Confidential Information will remain the Disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the Disclosing Party will be delivered to the Disclosing Party promptly upon the Disclosing Party’s written request.
12.4. Exceptions. Nothing contained in the Services Agreement will prevent Service Provider or Customer from complying with applicable laws. The Receiving Party may disclose Confidential Information of the Disclosing Party in connection with court orders, other legal processes, or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (unless prohibited to do so) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
13.2. Term. Subject to derogative terms contained in the Statement of Service and unless the Services are completed, this Agreement shall continue for a period of 1 year (the Initial Period), with automatic renewal for successive periods of 1 year each (each a Renewal Period) unless terminated by either Party by the giving of a three months written previous notice by registered mail prior to the end of the Initial Period or the end of each Renewal Period.
13.3. Early Termination. Either Party may terminate the Agreement with immediate effect, in case of any material breach by the other Party, provided that, if such breach may be cured, the terminating Party shall first have given the breaching party 30 days’ prior written notice (including by e-mail) to cure such breach.
13.4. Survival. Sections 7.4, 7, 12, 14, 16 and 17 shall survive the expiry or termination of this Agreement for whatever reason.
14.1. Principle. Customer shall not, during the term of this Agreement and for a period of 2 years after its expiry or termination, directly or indirectly, or through the intervention of any other party, encourage, induce or otherwise solicit (or in any manner, attempt to encourage, induce or solicit) any Staff person to terminate his or her employment with Service Provider, or hire any such Staff person.
14.2. Penalty. In case of breach of Section 14.1, Customer shall immediately pay a penalty to Service Provider corresponding to 12 months of gross salary for the Staff person concerned. The payment of the penalty shall not release Customer of any obligations under Section 14.1, and shall be without prejudice to Service Provider's right to claim damages.
15. Representations and warranties
15.1. Each Party (the Representing Party) hereby represents and warrants to the other Party that:
- the Representing Party is a duly organised and validly existing legal entity and is qualified to transact business with the other Party;
- the Agreement constitutes legal, valid, and binding obligations of the Representing Party, enforceable against the Representing Party in accordance with its terms;
- the execution, delivery and performance by the Representing Party of this Agreement do not (i) contravene any applicable provision of any law, statute, rule or regulation, or any order, injunction or decree of any court or any governmental instrumentality, (ii) conflict with or result in any breach of any agreement to which the Representing Party is a party, or (iii) violate any provision of the Representing Party’s articles of association or internal rules.
15.2. Service Provider further represents and warrants to Customer that the Staff is, and will be during the entire Term, contractually bound to Service Provider in such a manner as to enable Service Provider to fully comply with all provisions of this Agreement (including without limitation the non-disclosure of Proprietary Information pursuant to Section 12).
16.1. Amendment. Any amendment of the Agreement during the term of the Statement of Services shall be effective only in the form of a written instrument duly executed by both parties.
16.3. Hierarchy. In the event of a conflict or contradiction between the provisions of the GTC and those of any other contractual documents, the GTC shall take precedence, subject to express derogating provisions contained in the Statement of Services.
16.4. Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions shall remain valid and enforceable to the fullest extent possible.
16.5. No Waiver. The failure of either Party to enforce any of the provision of the Agreement, or any rights thereunder, shall in no way be considered as a waiver of such provisions or rights.
16.6. No Third-Party Beneficiaries. The Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in the Agreement is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever.
16.7. Force Majeure. Except with respect to payment obligations, and to the extent consistent with the laws governing the Agreement, if either Party is delayed or prevented from fulfilling its respective obligations under the Agreement by any cause beyond its reasonable control, then such performance shall be excused to the extent of the delay or failure, and that Party will not be liable under the Agreement for that delay or failure.
17. Governing Law and Jurisdiction
17.1. Governing Law. Subject to mandatory applicable law, the Agreement, as well as the Services performed thereunder, shall be governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions.
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