The definitions which shall apply to these Terms and Conditions are set out in paragraph 8.

Transcription

1 TERMS & CONDITIONS OF SERVICES OFFERED EFFECTIVE FROM 1 st June 2014 The definitions which shall apply to these Terms and Conditions are set out in paragraph THE SERVICES 1.1 TGL clinical agrees to users of TGL clinical Services (Users) that: Services will be provided with due care and diligence in accordance with ISO 15189:2012 quality managements standards; and the people providing the Services will be suitably skilled and experienced. 1.2 Users will be responsible, at their own cost, for the transport of samples to TGL clinical. 1.3 While every effort is made to achieve the turn-around times quoted by TGL clinical for the conduct of Tests, no warranty or guarantee is given that such turn-around times will be achieved in any particular instance. 1.4 Users shall notify in writing of any clinical information relevant to the Services requested and provide TGL clinical with such other information as TGL clinical may reasonably be expected to require concerning the Samples supplied by the Users and the persons from whom they were taken to enable TGL clinical to conduct the Tests and to report thereon. Users shall ensure that all Samples and Test Request Forms are labelled with at least two personal identifiers, which may include the patient s name (given name and surname count as one identifier), date of birth, Hospital or other agreed Reference Number. 1.5 TGL clinical will accept no responsibility for any error or defect in a Test or the report thereon consequent upon any inaccuracies in or omissions from the information supplied by the Users nor for any consequences of such errors or defects, and the Users shall indemnify and hold harmless TGL clinical and and their respective, officers, employees and agents, in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from any breach of paragraph Upon completion of a Test the Sample relating thereto may be destroyed or disposed of by TGL clinical unless otherwise agreed. 2. PRICE AND PAYMENT TERMS 2.1 The price for the conduct of the Services shall be specified, in writing (by , letter, or via the TGL clinical website) at initiation of Service and at least 4 weeks prior to any changes made to the price for Tests. As at the date of these Terms and Conditions VAT is not payable on TGL clinical Services. If the Services subsequently become subject to VAT, this will be charged in addition at the applicable rate. 2.2 Invoices are normally issued on a monthly basis, but TGL clinical reserves the right to issue them more frequently. Invoices are payable within 30 days of issue. Invoices paid from outside the UK must be paid by either direct bank transfer or by cheque drawn on a UK branch. All payments shall be made in pounds sterling.

2 Cheques made payable to: Institute of Cancer Research Bank Details: HSBC Account number Sort code: IBAN: GB07MIDL SWIFT: MIDLGB2107D If invoices are paid by bank transfer you must instruct your bank that all charges (including those of the beneficiary s bank) are to be paid by the send. 3. CONFIDENTIALITY 3.1 TGLclinical agrees that it will hold and maintain the confidence of: (a) all information of a confidential nature which is received by TGLclinical from the Client or its patients in connection with the Services; and (b) all Test results, invoices and other information of a confidential nature issued by TGLclinical to the Client or its patients in connection with the Services, and, save with the Client s consent, will not disclose such information other than to its professional staff, independent consultants and/or persons to whom it has delegated the performance of the Tests and who require the information for such purpose. 3.2 The restrictions in paragraph 3.1 shall not apply to information which: (i) was in TGLclinical s possession prior to disclosure by the Client; or (ii) is now or hereafter comes into the public domain other than by default of TGLclinical; or (iii) was lawfully received by TGLclinical from a third party acting in good faith having a right of further disclosure; or (iv) is required by law to be disclosed by TGLclinical. 4. LIABILITY AND INDEMNITY 4.1 The Client warrants and covenants that it will: comply with all relevant laws, regulations and guidelines applicable to the jurisdiction in which it is situated (including any applicable data protection laws) for the collection of the Samples being referred for Tests and their shipment to TGLclinical (which may include conduct of the tests and shipment outside of the EEA; obtain all consents and permissions required (whether by law (including under the data protection legislation), good medical practice or otherwise) in order to permit the conduct of the Tests on the Samples including where necessary permission for the Tests to be performed outside of the EEA; provide to TGL clinical confirmation that it has complied with all relevant laws applicable to the jurisdiction in which it is situated (including any applicable data protection laws) for the collection of the Samples which they are referring for the Tests which they are referring for the Tests and their shipment to TGL clinical and where necessary on to an overseas testing laboratory shall indemnify and hold harmless TGLclinical and the members of its Group and their respective directors, officers, employees and agents, in respect of all liabilities, costs, claims, loss, damage, demands, action and expenses (to include any settlements or ex-gratia payments and reasonable legal and expert costs and expenses) arising directly or indirectly from any breach of this paragraph 4.1. Without prejudice to the obligations of the Client in the preceding sentence the Client agrees to use any specific consent forms specified by TGL clinical.

3 4.2 Subject at all times to paragraph 4.4 and whether or not TGL clinical has been advised of the possibility of such loss, TGL clinical shall not be liable in respect of the Services in contract, tort or otherwise howsoever arising from any claim, damage, loss or costs in respect of: (i) any direct loss of profit; (ii) any direct loss of anticipated savings; or (iii) any indirect or consequential loss or damage howsoever caused including without limitation, any indirect loss of profit, loss of anticipated profit including loss of profit on contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation; and/or loss of data. 4.3 To the extent not covered by any other limitations the maximum liability of TGL clinical to the Client under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall be 5,000,000 less any sums paid by TGL clinical to any patient of the Client or other third party in satisfaction of a liability arising out of the same facts and circumstances. 4.4 The limitations in this paragraph 4 shall only apply where permitted under applicable law. 5. THIRD PARTIES For the purposes of the Contracts (Rights of Third Parties) Act 1999 [and notwithstanding any other provision of this Agreement] these Terms and Conditions are not intended to, and do not, give any person who is not a party to it any right to enforce any of the provisions, except that any subcontractor of TGL clinical and the servants and agents of TGL clinical and any such sub-contractor are third parties to these Terms and Conditions within the meaning of that Act and shall be entitled to enforce these Terms and Conditions accordingly. 6. FORCE MAJEURE If the performance of this Agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of that party obliged to perform it (including, without limitation, flood, fire, storm, strike, lockout, sabotage, terrorist act, civil commotion and government intervention), the party so affected shall (upon giving prompt notice thereof to the other party) be excused from performance to the extent only of the prevention, restriction or interference, provided always that the party so affected shall use all reasonable endeavours to avoid or remove the causes of non-performance and shall continue performance as expeditiously as possible as soon as such causes have been removed. 7. GENERAL 7.1 Dispute resolution (a) If any dispute arises relating to this Agreement or any breach or alleged breach of this Agreement, the parties shall make a good faith effort to resolve such dispute without recourse to legal proceedings. If, notwithstanding such good faith efforts, the dispute is not resolved either party may submit the dispute to the jurisdiction of the English Court. (b) Except to the extent clearly prevented by the area of dispute, the parties will continue to perform their respective obligations under this Agreement while such dispute is being resolved. 7.2 Data Protection Each party will comply with its obligations under the Data Protection Act 1998.

4 7.3 Variation Any amendments to this Agreement shall not be effective unless in writing and signed by an authorised signatory on behalf of each of the parties. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Act. The terms of this Agreement may be varied by agreement of the parties but without the consent of any third party whether or not the rights of such third party are affected by such variation. 7.4 Rights and waiver All rights granted to either of the parties shall be cumulative and not exhaustive of any rights and remedies provided by law. The failure of either party to enforce (or delay in enforcing) at any time for any period any one or more of the terms of this Agreement shall not be a waiver of such term or of the right of such party at any time subsequently to enforce all the terms of this Agreement. 7.5 Severability If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions will not be in any way affected. 7.6 Assignment TGL clinical may assign or sub-contract the performance of this Agreement (in whole or in part) or any one or more of the Tests to be performed hereunder to suitably accredited laboratories. The Client may not assign this Agreement or any of its rights or obligations hereunder without the prior approval of TGL clinical. 7.7 Relationship of the parties It is acknowledged and agreed that TGL clinical and the Client are independent contractors and nothing in this Agreement shall create or be construed as creating a partnership or a relationship of agent and principal between the parties. The Client acknowledges and agrees that, in requesting Services from TGL clinical, it is not acting as agent for any patient or patients to which the Services relate. 7.9 Governing law This Agreement shall be governed by and construed in accordance with English law and each of the parties submits to the exclusive jurisdiction of the English Courts. 8. INTERPRETATION 8.1 In these Terms and Conditions:- this Agreement means the contract between TGL clinical and the Client for the supply of the Services, incorporating these Terms and Conditions. Client means the person or organisation requesting Services from TGL clinical and for whom TGL clinical has agreed to provide the Services. Sample means a sample provided by the Client to TGL clinical for investigation. Services means the conduct of the Tests specified in the Gene Test Request Form submitted by the Client and accepted by TGL clinical, and/or such other services as TGL clinical has agreed to supply to the Client.

5 TGLclinical means the clinical Translational Genomics Laboratory situated within the legal entity of. Test means a laboratory test agreed to be carried out by TGL clinical on a Sample supplied by the Client. 8.2 References to the singular include the plural and vice versa. 8.3 Paragraph headings are for ease of reference only and are not part of these Terms and Conditions for the purpose of construction. 9. DATA PROTECTION 9.1 TGL clinical is a data processor and the Client is the data controller of any personal data processed by TGL clinical pursuant to this Agreement. 9.2 In this Clause, the terms data, personal data, data controller, data processor, data subject and sensitive personal data have the meanings given in the Data Protection Act 1998 (the Act) and processing, process and processed shall be construed accordingly. 9.3 TGLclinical shall: promptly provide to the Client all information in its possession concerning any unauthorised or accidental disclosure or access made by an employee, director or agent, to any personal data held by it on Client s behalf; and if instructed to do so in writing, subject to clause 9.6 (below) comply with any relevant changes in the Act in respect of the personal data held by it on Client s behalf. 9.4 TGL clinical shall put in place: appropriate technical and organisational measures against inappropriate processing of personal data and against unauthorised, accidental or unlawful access to the personal data (having regard to the state of technological development and the costs of implementing any such measures) as well as reasonable security programmes and procedures for the purpose of ensuring that only authorised personnel have access to the personal data processing equipment to be used to process the personal data, and that any persons whom it authorises to have access to the personal data shall respect and maintain all due confidentiality; a level of security programmes and procedures which reflect: (a) the level of damage that might be suffered by a data subject to whom the personal data relates as a result of unauthorised or unlawful possession of the personal data or the loss or destruction of or damage to the personal data; and (b) the state of technological development and the costs of implementing such programmes and procedures; and as required by the Act, such security programmes and procedures which specifically address the nature of any sensitive personal data. 9.5 TGL clinical shall: only process data as is necessary to perform its obligations under this Agreement and shall ensure that such personal data shall be held and processed only in accordance with the Act; take all such actions as are necessary to ensure that it has fulfilled and shall continue to fulfil and observe the obligations in clause 9.3 and clause 9.4 in respect of the data, including for the avoidance of doubt, personal data;

6 9.5.3 process the personal data only for such purposes as are instructed by Client or in accordance with the laws of any relevant regulatory body; promptly comply with any change of instructions from the Client relating to: (a) the personal data; and (b) the role of TGL clinical as a data processor in accordance with this Agreement and/or as otherwise required by changes or amendments to applicable Laws; procure that any of its respective subcontractors and agents shall comply with the obligations under clause 9.4 and this clause 9.5 to the extent that such subcontractor or agent will be processing personal data. 9.6 TGL clinical may transfer the personal data outside of the EEA where necessary. 9.7 If for any reason TGL clinical is unable to comply with an instruction under clause 9.5 it shall inform the Client in writing and stop processing the personal data.