Terms for the Supply of Services
THE TERMS FOR THE SUPPLY OF SERVICES ARE LIMITED TO THOSE CONTAINED HEREIN, AND/OR ON COMPUGEN’S INVOICE IN RESPECT OF THE SALE.
BY ENGAGING COMPUGEN INC. (“COMPUGEN”) TO PERFORM SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CUSTOMER AND COMPUGEN HAVE SIGNED A SEPARATE MASTER SERVICES AGREEMENT AND RELATED STATEMENT OF WORK, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ORDERS PLACED BY CUSTOMER ARE NOT BINDING UNTIL ACCEPTED BY COMPUGEN. SERVICE DELIVERY TIMES ARE ESTIMATES ONLY. COMPUGEN IS NOT LIABLE FOR ANY DELAYS THAT ARE BEYOND ITS CONTROL. THESE TERMS ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE.
Important Information About These Terms
Customer acknowledges that these Terms constitute a binding contract between Customer and COMPUGEN and are referred to herein as either "Terms " or this "Agreement". Customer accepts these Terms by making a purchase from or placing an order for Services with COMPUGEN or shopping on any COMPUGEN Website or Mobile Application (each, a ‘’Site") or otherwise requesting COMPUGEN to perform any Services.
Customer consents to receiving electronic records related to its transactions with Compugen, which may be provided via a Web browser or e-mail application. Customers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting COMPUGEN. Customer acknowledges and agrees that electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only. Terms set forth in such purchase orders other than those required to identify the Customer, and the Services requested contained in any such purchase order will be null and void. This Agreement contains the entire understanding of the parties with respect to the terms for the Services and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the Services, except as set out in a Master Services Agreement.
Supply of Services
Customers may order services (collectively, "Services") from or through COMPUGEN from time to time. The term Services relates only to the services provided to the Customer by employees and subcontractors of Compugen and does not relate to Third Party Services as hereinafter defined. Certain Services, such as extended warranty service by manufacturers, are sold by COMPUGEN as a sales agent ("Third Party Services"). The Terms related to Third Party Services shall be those set out in the Terms and Conditions Related to Product Sales documented and published by Compugen from time to time and posted on its website https://www.compugen.com/en/product_terms/. The sale of Services may be combined with a purchase of Products from COMPUGEN on the same order. Where such Products are included on the same purchase order as Services, the Terms for Product Sales apply to the Products and the Terms for the Supply of Services shall apply to the Services provided to the Customer.
Where Services are ordered through a Compugen standard Statement of Services, each Statement of Services hereby incorporates these Terms with respect to the Services performed. In the event of an addition to or a conflict between any term of the Statement of Services and these Terms, the terms of this Agreement will apply, except as agreed between the Customer and COMPUGEN in the applicable Statement of Services by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Services and not to future Statement of Services. Changes to the scope of the Services described in a Statement of Services will be made only in a writing executed by authorized representatives of both parties. COMPUGEN will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and the applicable Statement of Services.
In addition to any specific Customer duties set forth in any applicable Service Statement of Services, Customer agrees to cooperate with COMPUGEN in connection with performance of the Services by providing (i) timely responses to COMPUGEN's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by COMPUGEN which are necessary or useful as determined by COMPUGEN in connection with providing the Services, including, but not limited to, physical and computer access to Customer's computer systems, and (iii) all Required Consents necessary for COMPUGEN to provide the Services. "Required Consents" means consents or approvals required to give COMPUGEN and its subcontractors the right or license to access, use and modify all data and Third Party Products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the Customers employees, agents or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with COMPUGEN.
COMPUGEN will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to COMPUGEN from time to time.
COMPUGEN may perform the Services at Customer's place of business, at COMPUGEN's own facilities or such other locations as COMPUGEN and Customer agree upon. When the Services are performed at Customer's premises, COMPUGEN will attempt to perform such Services within Customer's normal business hours unless otherwise jointly agreed to by the parties. Customer will also provide COMPUGEN access to Customer's staff and any other Customer resources that COMPUGEN determines are useful or necessary for COMPUGEN to provide the Services. When the Services are provided on Customer's premises or at another location designated by Customer, Customer agrees to maintain commercial general liability insurance coverage in an amount that is not less than one million dollars ($1,000,000.00 CAD) per occurrence to protect COMPUGEN and Customer's premises and to indemnify and hold COMPUGEN and its Affiliates, and its and their agents and directors, officers, employees and other representatives harmless from any loss, cost, damage or expense arising out of any liability including but not limited to death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of COMPUGEN's gross negligence or willful misconduct.
Customer agrees to pay the total purchase price for the Services plus travel expenses, where applicable and other costs identified on the invoices delivered from time to time. Customer will pay any applicable sales, use, goods and services, transaction, excise or similar taxes and any federal, provincial, sales tax or other charges (including but not limited to environmental or similar fees), imposed on, in respect of or otherwise associated with all of the Services.
Terms of payment are within COMPUGEN's sole discretion. Customer will pay for the Services as invoiced by COMPUGEN. Invoices are due and payable within the time period specified on the invoice unless otherwise specified in writing by agreement between Customer and Compugen in advance, measured from the date of invoice, subject to continuing credit approval by COMPUGEN.
COMPUGEN may invoice Customer separately for Services that have been partially performed. Customer agrees to pay interest on all past-due sums at one and one-half percent (1.5%) per month, (18% per annum) calculated monthly.
In the event payments are not received in accordance with COMPUGEN’s approved terms of payment, COMPUGEN may suspend or terminate the provision of Services upon notice to the Customer. In the event of a payment default, Customer will be responsible for all of COMPUGEN’s costs of collection, including, but not limited to, court costs, filing fees and lawyers' fees. All references to money amounts are to lawful currency of Canada or as otherwise stipulated in the invoice. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide COMPUGEN with the necessary supporting documentation.
COMPUGEN warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and COMPUGEN's entire liability with respect to this warranty will be, at the sole option of COMPUGEN, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with the Statement of Services in respect of such Services or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance, subject to the limitations of liability set out below. Such warranty shall only be applicable if Customer notifies COMPUGEN in writing within two (2) business days after performance of the applicable Services. EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF SERVICES OR WORK THAT EXPRESSLY AMENDS COMPUGEN'S WARRANTY, AND SUBJECT TO APPLICABLE LAW, COMPUGEN MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPUGEN OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPUGEN OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF SERVICES OR WORK EXPRESSLY AMENDING COMPUGEN'S WARRANTY.
Customer shall be solely responsible for backup prior to the provision of Services by Compugen as well as daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. COMPUGEN, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.
COMPUGEN will not be responsible for and no liability shall result to COMPUGEN for any delays in delivery or in performance which result from any circumstances beyond COMPUGEN’s reasonable control, including, but not limited to delays due to fire, severe weather conditions, failure of power, labour problems, acts of war, terrorism, embargo, acts of God, epidemics or pandemics or acts or laws of any government or agency. Any commencement dates or completion dates provided by COMPUGEN or any purported deadlines contained in a Statement of Services or any other document are estimates only.
Pricing Information; Availability Disclaimer
COMPUGEN reserves the right to make adjustments to pricing for Service offerings from time to time. All orders are subject to availability of Compugen’s personnel to perform the Services. If Services are being performed on a time and materials basis, any estimates provided by COMPUGEN are for planning purposes only.
Limitation of Liability
COMPUGEN’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED OR INCURRED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE SUPPLY OF SERVICES BY COMPUGEN FOR THIS AGREEMENT IS HEREBY LIMITED TO THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM; OR (B) TEN-THOUSAND ($10,000.00) CANADIAN DOLLARS.
IN NO EVENT SHALL COMPUGEN BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. COMPUGEN SHALL HAVE NO LIABILITY FOR THE FOLLOWING: (I) LOSSES OF REVENUE, INCOME, PROFIT OR SAVINGS; (II) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORK(S, OR THE RECOVERY OF SUCH; (III) LOSS OF BUSINESS OPPORTUNITY; (IV) BUSINESS INTERRUPTION OR DOWNTIME; (V) CYBERSECURITY BREACHES (VI) LOSS OF GOODWILL OR REPUTATION; OR (VII) SERVICES NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE SERVICES.
The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the alleged or actual damages were foreseeable or a claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed and bargained-for allocations of risk and Compugen’s compensation for the Services reflects such allocations. Such limitations will apply notwithstanding the failure of the essential purpose of this Agreement or any remedy contained herein and even if a party has been advised of the possibility of any such failure or liability.
Customer's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that COMPUGEN may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Authorized User for Computer Installations
If and to the extent Compugen and/or its agents, employees, subcontractors, third-party service providers (" Personnel"), at the request of Customer or otherwise pursuant to this Agreement or any Statement of Services issued hereunder, (a) installs or causes to be installed on Customer’s computer systems any computer program or any updates or upgrades to such computer programs (collectively, "Computer Programs"), or (b) having so installed or caused to be installed such Computer Programs, causes an electronic message to be sent from Customer’s computer system, then Customer acknowledges and agrees that Compugen and its Personnel, as applicable, shall be authorized user(s) of Customer’s computer system at the time of such installation or transmission for the purposes of Canada’s Anti-Spam Legislation ("CASL") and its regulations thereunder, as same may be amended from time to time. In connection with the installation of Computer Programs or the transmission of electronic messages set out above by Compugen and/or its Personnel, Customer shall indemnify and hold Compugen, its Affiliates, and its and their directors, officers, employees and agents harmless from any loss, cost, damage or expense (including lawyers’ fees) arising out of or in connection with any alleged or actual breach of CASL.
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, its Affiliates or a third party (hereinafter referred to as "Confidential Information") to the other party in the performance of this Agreement and any Statement of Services or Work. "Confidential Information" means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Services or Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labelled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible; however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other Party's Confidential Information confidential for a period of two (2) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other Party's Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement or the applicable Statement of Services or Work and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable Statement of Services or Work, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other Party for any purpose other than the business purposes contemplated by this Agreement and the applicable Statement of Services or Work. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other Party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
Either party may terminate performance of an agreement to perform Services for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of a Service, Customer will pay COMPUGEN for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Services or Work. In such event Customer will also pay COMPUGEN for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate in respect of the Services except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Products sold pursuant to this Agreement, the interpretation or application of these Terms or the breach, termination or validity thereof, the relationships which result from these Terms (including, to the full extent permitted by applicable law, relationships with third-parties who are not signatories hereto), or COMPUGEN's or any of its Affiliates' advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION BY A SINGLE ARBITRATOR CONDUCTED PURSUANT TO THE NATIONAL ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, INC. Neither COMPUGEN nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in this Agreement, this arbitration is subject to the Arbitration Act, 1991 (Ontario), as amended. The arbitration will take place exclusively in Toronto, Ontario. The language of the arbitration shall be conducted in English. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator. Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to COMPUGEN arising out of the Products will be exclusively litigated in court rather than through arbitration.
These terms and conditions, and any sale of services hereunder will be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of laws rules. Any arbitration, enforcement of an arbitration or litigation will be brought exclusively in Toronto, Ontario and Customer consents to the non-exclusive jurisdiction of the courts of Ontario with respect to any subject matter arising hereunder or relating thereto and waives the right to change venue. The rights and remedies provided COMPUGEN under these Terms are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
COMPUGEN may assign or subcontract all or any portion of its rights or obligations with respect to the supply of Services or assign the right to receive payments, without Customer's consent. Customer may not assign its rights or obligations under these Terms without the prior written consent of COMPUGEN. Subject to the restrictions in assignment contained herein, these Terms will be binding on and ensure to the benefit of the parties hereto and their successors and permitted assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between COMPUGEN and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Notices provided under this Agreement will be given in writing at the address of Compugen and the customer set out in the invoice for the Services and deemed received upon the earlier of actual receipt, the date of transmission of a notice sent by email or five (5) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by courier. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
Version Date: Compugen - May 24, 2022