Terms of Business
1 Application and entire agreement
1.1 These Terms of Business ("Terms") apply to the provision of the services described in our quotation ("Services") by Applied Genomics Ltd ("Applied Genomics", "we" or "us") to the person or legal entity purchasing the Services ("Client" or "you"), and to the supply of any goods in connection with those Services unless we specify otherwise.
1.2 You are deemed to have accepted these Terms when you accept our quotation, or from the date of any performance of the Services, whichever is earlier. These Terms and our quotation (together, "the Contract") are the entire agreement between us.
1.3 You acknowledge that you have not relied on any statement, promise or representation made or given by us or on our behalf. These Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2 Definitions and interpretation
2.1 In these Terms:
“Background Data” means all methodologies, analytical pipelines, scripts, algorithms, intermediate files, quality control outputs, reference databases, models, software and know-how used or developed by Applied Genomics in providing the Services;
“Deliverable Data” means the final processed datasets, reports, figures, summaries and interpreted outputs expressly identified in the Scope of Work;
“Equipment” means any equipment, sampling devices, instruments, containers, accessories or other materials supplied by Applied Genomics to the Client for the purposes of collecting, storing or transporting samples;
“Fees” means the fees for the Services as set out in the quotation;
“Raw Data” means primary sequence data and associated unprocessed outputs generated from Client samples, including but not limited to FASTQ files or equivalent formats;
“Samples” means the physical biological material submitted to, or collected on behalf of, the Client for analysis under the Contract;
“Scope of Work” means the agreed description of the Services and Deliverable Data to be provided;
“Standard Retention Period” has the meaning given in clause 19.1.
2.2 A "business day" means any day other than a Saturday, Sunday or bank holiday in England and Wales.
2.3 Clause headings are for convenience only and do not affect interpretation.
2.4 Words importing the singular include the plural and vice versa.
2.5 A reference to legislation is a reference to it as amended, extended or re-enacted from time to time.
3 Services
3.1 We warrant that we will use reasonable care and skill in our performance of the Services, which will comply with the quotation, including any specification, in all material respects. We may make any changes to the Services necessary to comply with any applicable law or safety requirement, and will notify you where this is the case.
3.2 We will use reasonable endeavours to complete the Services within any time agreed or set out in the quotation; time shall not be of the essence in the performance of our obligations.
4 Client obligations
4.1 You must obtain any permissions, consents or licences, and give us access to any information, data, materials, properties and other matters, that we need to provide the Services.
4.2 If you do not comply with clause 4.1 we may terminate the Services, and we are not liable for any delay or failure to provide the Services caused by that non-compliance.
4.3 Where Samples are collected outside the United Kingdom, or where Equipment or Samples cross international borders, you are responsible for obtaining all necessary sampling, access and benefit-sharing (including under the Nagoya Protocol), import, export, customs and biosecurity permissions, and for any associated duties, taxes and clearance costs, unless expressly agreed otherwise in writing.
5 Fees, expenses and deposit
5.1 The Fees are set out in the quotation and, unless stated otherwise, are on a time and materials basis.
5.2 In addition to the Fees, we may recover: reasonable incidental expenses, including travel, accommodation and subsistence; the cost of services provided by third parties and required for the Services; and the cost of any materials required for the Services.
5.3 You must pay for any additional services not specified in the quotation at our then-current applicable rate, or such other rate as may be agreed. Clause 5.2 also applies to such additional services.
5.4 The Fees are exclusive of VAT and any other applicable taxes or levies, which you must pay at the prevailing rate.
5.5 Where the quotation requires a deposit ("Deposit"), you must pay it within ten business days of acceptance. If you do not, we may withhold the Services until it is received or terminate under clause 9. The Deposit is non-refundable unless we fail to provide the Services and are at fault for that failure.
6 Payment
6.1 We will invoice you on completion of the Services, on the invoice dates or milestones set out in the quotation, and, where a deposit is required, on acceptance. Unless we have expressly agreed credit terms with you in writing, the final Deliverable Data and Raw Data will be released to you only on receipt of payment of the relevant Fees in full and in cleared funds.
6.2 For a Client's first engagement with us, or where a Client's credit standing or payment history warrants it, we may require all or part of the Fees to be paid in advance, whether by deposit, staged payment or pro-forma invoice, before we commence, continue or deliver the Services.
6.3 You must pay each invoice in full within 30 days of its date, or otherwise in accordance with any credit terms agreed in writing. Time for payment is of the essence.
6.4 All payments must be made in pounds sterling unless otherwise agreed in writing, in full and without any deduction, set-off or counterclaim except as required by law.
6.5 Without limiting our rights under the Late Payment of Commercial Debts (Interest) Act 1998, if you do not pay by the due date we may charge interest on the overdue amount at 5% per annum above the Bank of England base rate from time to time, accruing daily until payment is received in full, and recover the reasonable costs we incur in obtaining payment.
6.6 If you do not pay by the due date we may suspend further provision of the Services and cancel any future services ordered by or arranged with you.
6.7 Receipts will be issued only on request.
7 Cancellation and amendment
7.1 We may withdraw, cancel or amend a quotation that has not been accepted, or where the Services have not started, within ten business days of its date.
7.2 Either party may cancel an order for any reason before your acceptance or rejection of the quotation.
7.3 If you cancel the Services after acceptance of the quotation, you must notify us in writing. You will remain liable for: the Fees for all Services performed up to the date of cancellation; all costs we have irrevocably committed or incurred in reliance on the Contract that cannot reasonably be cancelled or recovered, including non-returnable consumables, booked sequencing capacity and sub-contractor commitments; and our reasonable costs of winding down the work. Any Deposit paid will be applied against these amounts and is otherwise non-refundable in accordance with clause 5.5.
7.4 If you reduce the scope of the Services after acceptance, clause 7.3 applies to the reduced portion. You acknowledge that, because analytical work is batched and certain costs are incurred per run rather than per sample, a reduction in the number of samples or analyses may not reduce the Fees proportionately. We will confirm any revised Fees before continuing, and may re-quote where the reduction materially alters the basis on which the Services were priced.
7.5 If you wish to amend the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make the required changes; any additional cost will be added to the Fees and invoiced.
7.6 If, due to circumstances beyond our reasonable control, we must change the Services or how they are provided, we will notify you promptly and use reasonable endeavours to keep changes to a minimum.
8 Sub-contracting and assignment
8.1 We may assign, transfer, charge, sub-contract or otherwise deal with any of our rights, and may sub-contract or delegate any of our obligations, under the Contract. In particular, sequencing and certain analytical steps may be performed by approved sub-contractors.
8.2 You may not assign, transfer, charge, sub-contract or otherwise deal with any of your rights or obligations under the Contract without our prior written consent.
9 Termination
9.1 We may terminate the provision of the Services immediately on written notice if you: commit a material breach of your obligations under these Terms and, where the breach is capable of remedy, fail to remedy it within 14 days of notice; fail to pay any amount due under the Contract on the due date; or become, or in our reasonable opinion are about to become, subject to any insolvency event, including a bankruptcy order, a voluntary arrangement or other scheme with creditors, entry into liquidation, the appointment of a receiver, manager, administrator or administrative receiver, or the commencement of any analogous proceedings.
9.2 Termination does not affect any rights, remedies, obligations or liabilities that have accrued as at termination, including our right to payment for Services performed.
10 Ownership of data and intellectual property
10.1 Ownership of Deliverable Data shall vest in the Client on full payment of all Fees due under the Contract, subject to the licence reserved to Applied Genomics under clause 15.
10.2 All Background Data shall remain the sole and exclusive property of Applied Genomics. Nothing in the Contract operates to assign or transfer any rights in Background Data to the Client.
10.3 Raw Data is not assigned to the Client. It shall be made available to the Client on request, subject to payment of all Fees due and to the retention periods in clause 19, and is licensed in accordance with clause 11.
10.4 We reserve all copyright and other intellectual property rights subsisting in any goods supplied in connection with the Services, and may take appropriate action to restrain or prevent infringement of those rights.
10.5 Except as expressly set out in these Terms, no right, title or interest in any data, intellectual property or materials is transferred to the Client.
11 Licence and permitted use
11.1 We grant the Client a perpetual, royalty-free, non-exclusive licence to use Raw Data for any lawful business purpose, including: system design, deployment, operation and maintenance; environmental assessment, monitoring and reporting; and regulatory submissions and third-party disclosures.
11.2 The Client may use Deliverable Data without restriction for its internal and external business purposes.
11.3 The Client shall not: reverse engineer, deconstruct or otherwise attempt to derive our methodologies or analytical workflows from Deliverable Data or Raw Data; use Deliverable Data or Raw Data to develop or commercialise competing analytical services; or access, use or attempt to obtain Background Data except as expressly permitted.
12 Data standards and FAIR principles
12.1 So far as reasonably practicable and consistent with the Scope of Work, we will provide Deliverable Data, and where applicable Raw Data, in formats aligned with the FAIR principles (Findable, Accessible, Interoperable, Reusable), including: machine-readable, standardised file formats; metadata describing sampling design, provenance and analytical context; and documentation sufficient to support interpretation and reuse.
12.2 FAIR alignment applies to Deliverable Data and Raw Data only and does not require disclosure of Background Data, proprietary workflows or source code.
13 Metadata, auditability and reproducibility
13.1 We will provide metadata sufficient to support the auditability and regulatory use of Deliverable Data, including: sample identifiers and traceability; summary descriptions of analytical methods; and relevant quality assurance and quality control information.
13.2 Full reproducibility of analytical results using our proprietary pipelines is not guaranteed and is not included unless expressly agreed in writing.
13.3 Disclosure of detailed analytical pipelines, source code or proprietary methods is excluded unless separately contracted.
14 Scope of deliverables
14.1 We will provide only those Deliverable Data expressly defined in the Scope of Work.
14.2 Any additional data outputs, including intermediate files, extended datasets or alternative analyses, will be provided only at our discretion or under separate agreement.
15 Retained rights and data reuse
15.1 We retain the irrevocable, perpetual, royalty-free right and licence to: use, reproduce and analyse data generated through the provision of the Services in anonymised and aggregated form; incorporate such data into our internal reference databases, benchmarking systems and analytical models; and use such data for research, development, validation and service improvement. This licence survives completion of the Services and any transfer of ownership of Deliverable Data under clause 10.1.
15.2 We will not disclose Client-identifiable or commercially sensitive information without your prior written consent, except where required by law.
16 Third-party rights in data
16.1 Certain components of Raw Data or Deliverable Data may be subject to third-party rights, including those of sequencing providers, software vendors and reference database providers.
16.2 We grant rights only to the extent permitted under those third-party terms and accept no liability for restrictions imposed by third parties.
17 Use and interpretation of results
17.1 You acknowledge that: results depend on sampling design, environmental conditions and analytical limitations; detection is probabilistic and subject to methodological thresholds; and non-detection does not constitute evidence of absence.
17.2 You are responsible for ensuring that Deliverable Data is used and interpreted in accordance with the documentation provided.
17.3 We are not liable for decisions made by you or any third party based on Deliverable Data beyond its intended scope of use.
18 Client Equipment
18.1 Equipment shall remain the sole property of Applied Genomics at all times unless expressly agreed otherwise in writing. Where practicable, the declared replacement value of each item of Equipment will be recorded in the quotation or in an accompanying equipment schedule.
18.2 You must take reasonable care of the Equipment while it is in your possession or control, use it only for its intended purpose and in accordance with our instructions, and keep it insured against loss or damage to at least its declared replacement value while in your possession and in transit.
18.3 Risk in the Equipment passes to you on despatch to you or your nominated agent and remains with you until the Equipment is received back by Applied Genomics. You are responsible for arranging appropriately insured and tracked carriage for the return of the Equipment.
18.4 You must promptly notify us if any Equipment is lost, stolen, damaged beyond economic repair, or otherwise unavailable for return.
18.5 Where Equipment is lost, stolen, destroyed or not returned on request, you are liable for its full replacement cost, being the declared replacement value where recorded, together with any associated shipping, customs duties, taxes and reasonable administrative costs we incur in procuring and supplying replacement Equipment.
18.6 Payment of replacement costs does not transfer ownership of the Equipment to you. If Equipment for which replacement costs have been paid is subsequently recovered, it remains the property of Applied Genomics and must be returned to us without unreasonable delay at your expense.
18.7 Where Equipment is returned damaged beyond fair wear and tear, we may charge you the reasonable cost of repair or replacement.
19 Sample and DNA retention (biobanking)
19.1 Unless otherwise agreed in writing, we will retain purified DNA extracts generated during the Services for six months following delivery of the final project deliverables ("Standard Retention Period"). We will retain Raw Data for the same period, after which it may no longer be available for release under clause 10.3.
19.2 We will retain physical Samples only for so long as is reasonably necessary to complete the Services and any agreed quality control, after which they may be disposed of without further notice unless their return or extended retention has been agreed in writing.
19.3 Following expiry of the Standard Retention Period, we may dispose of retained DNA extracts without further notice. Any retention or reuse of extracts by us beyond disposal is limited to the anonymised and aggregated purposes set out in clause 15.
19.4 During the Standard Retention Period you may request additional analyses using retained DNA extracts. Such analyses are subject to a separate quotation and our acceptance.
19.5 You may purchase an extended biobanking service before expiry of the Standard Retention Period. Where agreed and paid for, we will retain your purified DNA extracts for the agreed period and make reasonable efforts to preserve their integrity under appropriate storage conditions. Extended biobanking reserves your right to request future analyses using the retained extracts but does not include any analytical services, which will be separately quoted.
19.6 We accept no liability where subsequent analysis is not possible due to degradation resulting from the inherent instability of biological material, provided reasonable storage practices have been followed.
19.7 Nothing in this clause alters the ownership of Deliverable Data, Raw Data or Background Data set out elsewhere in these Terms.
20 Liability and indemnity
20.1 This clause sets out our entire liability, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, in connection with the Contract.
20.2 Our total aggregate liability under or in connection with the Contract is limited to the total amount of Fees payable by you under the Contract.
20.3 We are not liable for: any indirect, special or consequential loss, damage, cost or expense; any loss of profit or anticipated profit, loss of business, loss of data, loss of reputation or goodwill, business interruption, or third-party claims; any loss arising from your breach of your obligations; or any loss arising from your choice of Services, whether the Services meet your requirements, or your use of the Services or any goods supplied in connection with them.
20.4 You must indemnify us against all damages, costs, claims and expenses we suffer arising from any loss of or damage to any equipment, including that belonging to third parties, caused by you or your agents or employees; this is without prejudice to your obligations in respect of Equipment under clause 18.
20.5 Nothing in these Terms limits or excludes our liability for death or personal injury caused by our negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be limited or excluded.
21 Confidentiality
21.1 Each party shall keep confidential the other party’s confidential information disclosed in connection with the Contract, use it only for the purposes of the Contract, and not disclose it except to those of its personnel, sub-contractors or advisers who need to know it and who are bound by equivalent obligations of confidence.
21.2 This clause does not apply to information that is or becomes public through no breach of this clause, is lawfully obtained from a third party without restriction, is independently developed, or is required to be disclosed by law or by a regulatory authority.
21.3 This clause does not restrict our rights of data reuse under clause 15.
22 Data protection
22.1 In providing the Services we may access, transfer, store or process personal data relating to your personnel. Where we do so, you are the data controller and we are the data processor, as defined in the UK GDPR and the Data Protection Act 2018.
22.2 We will process such personal data only to the extent reasonably required to provide the Services or as agreed with you, will not retain it for longer than necessary, and will not process it for our own or any third party’s purposes.
22.3 We will not disclose personal data to any third party other than our personnel, directors, agents, sub-contractors or advisers on a strict need-to-know basis and under obligations no less protective than these, or as required by law.
22.4 We will implement and maintain appropriate technical and organisational measures to protect personal data processed on your behalf.
22.5 Further information is set out in our Data Protection Policy, available on our website. Data protection enquiries may be sent to sebastian@appliedgenomics.co.uk.
23 Circumstances beyond a party’s control
23.1 Neither party is liable for any failure or delay in performing its obligations where that failure or delay results from any cause beyond its reasonable control, including power failure, failure of communications networks, industrial action, civil unrest, fire, flood, storm, earthquake, epidemic or pandemic, acts of terrorism, acts of war, or governmental action.
23.2 If the delay continues for a period of 90 days, either party may terminate the affected Services on written notice.
24 Communications
24.1 All notices under the Contract must be in writing and sent to the most recent postal or email address notified by the recipient.
24.2 A notice is deemed given: if delivered by hand or courier, on delivery during business hours; if sent by email, on transmission where no failure notice is received; and if sent by post, on the second business day after posting.
25 No waiver
25.1 No delay, act or omission by a party in exercising any right or remedy is a waiver of that or any other right or remedy, nor does it prevent the further exercise of that or any other right or remedy.
26 Severance
26.1 If any provision of these Terms is found to be unlawful, invalid or unenforceable, it shall be severed and the remaining provisions shall continue in full force and effect.
27 Third-party rights
27.1 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
28 Governing law and jurisdiction
28.1 The Contract is governed by the law of England and Wales. The parties submit to the exclusive jurisdiction of the courts of England and Wales in respect of any dispute arising out of or in connection with the Contract, including any non-contractual dispute or claim.