Definitions and interpretation
1.1 In these Conditions the following definitions apply:
‘Affiliate’ means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
‘Business Day’ means a day other than a Saturday, Sunday or a statutory holiday in the Province of Ontario or any other day on which the principal chartered banks located in Ontario are not open for business during normal banking hours;
‘Conditions‘ means NatureMetrics’ terms and conditions as set out in this document;
‘Confidential Information’ has the meaning given in section 19.1;
‘Contaminants’ has the meaning given in section 6.4;
‘Contract’ means the agreement between NatureMetrics and the Customer for the supply and purchase of Services incorporating these Conditions and the Order Form and including all their respective schedules, attachments, annexes and statements of work;
‘Control’ means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company, and ‘Controls’, ‘Controlled’ and ‘under common Control’ shall be interpreted accordingly;
‘Customer’ means the party which has agreed to purchase the Services from NatureMetrics and whose name and details are set out in the Order Form;
‘Data Protection Laws’ means, as binding on either party or the Services:
(b) provincial or territorial privacy statutes that are in force within Canada; and
(c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
‘Final Report’ means the report provided to the Customer by NatureMetrics detailing the results of the analyses conducted as part of the Services;
‘Force Majeure’ means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
‘Intellectual Property Rights’ means copyright, patents, know-how, trade secrets, trademarks,
trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in confidential information, rights to invention, rights to sue for passing off, domain names and all other
intellectual property rights and similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future;
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
‘IPR Claim’ means any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply of the Services;
‘Kit’ means a sampling kit (including instructions) to be provided by NatureMetrics as part of the Services, which the Customer can use to collect Samples;
‘Metadata’ has the meaning set out in section 11.2;
‘NatureMetrics’ means Nature Metrics North America Ltd., a company incorporated and registered under the laws of Ontario with a registered address at 365 Bay Street, Suite 800, Toronto, Ontario,
Canada, M5H 2V1;
‘Order Form’ means the order for the Services to be supplied by NatureMetrics, as placed by the Customer (i) via NatureMetrics’ online ordering portal, or (ii) if the Customer is not using the online ordering portal, in substantially the same form as set out in Schedule 2;
‘Personal Information’ shall mean personal information about an indentifiable individual as those terms are used in PIPEDA;
‘Privacy Breach’ shall mean a contravention of a party’s obligations under Division
1 of PIPEDA;
‘PIPEDA’ means the Personal Information Protection and Electronic Documents Act;
‘Price’ has the meaning set out in section 3.1;
‘Protected Data’ means Personal Information received from or on behalf of the Customer in connection with the performance of NatureMetrics’ obligations under the Contract;
‘Representatives’ has the meaning set out in section 19.2(a);
‘Sample’ means the collection of organisms or a sample of organic/environmental material supplied by the Customer on which NatureMetrics shall perform the genetic analyses relevant to the Services;
‘Sample Data’ has the meaning set out in section 11.3;
‘Sequence Data’ has the meaning set out in section 11.1(a);
‘Services’ means, in general:
(i) the delivery of Kits to the Customer;
(ii) on receipt of Samples back from the Customer, the analysis of those Samples by NatureMetrics for the presence or absence of certain species’ DNA within those Samples; and
(iii) the provision of the Final Report to the Customer detailing the results of these analyses;
each as further specified in the Order Form;
‘Species List’ has the meaning set out in section 11.1(b);
‘Sub-Processor’ means any agent, sub-contractor or other third party (excluding its employees) engaged by NatureMetrics for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
‘Technical Data’ has the meaning set out in section 11.1(c); and
‘VAT’ means a value-added tax such as the GST, HST or any other similar federal, provincial or territorial sales tax or excise tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
(a) any section, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
(b) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
(c) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each
case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
(d) a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
(e) a reference to a gender includes each other gender;
(f) words in the singular include the plural and vice versa;
(g) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
(h) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
(i) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time, and includes all subordinate legislation made from time to time under that legislation; and
(j) a reference to any Canadian action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than Canada, be deemed to include a reference to that which most nearly approximates to the Canadian equivalent in that jurisdiction.
2. Application of these Conditions
2.1 These Conditions apply to and form part of the Contract between NatureMetrics and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract.
2.3 No variation to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorized signatory on behalf of each of NatureMetrics and the Customer.
2.4 Each Order Form submitted to by the Customer to NatureMetrics shall be an offer to purchase Services subject to the Contract including these Conditions.
2.5 If NatureMetrics is unable to accept an Order Form, it shall notify the Customer as soon as reasonably practicable.
2.6 The offer constituted by an Order Form shall remain in effect and be capable of being accepted by NatureMetrics for ten (10) Business Days from the date on which the Customer submitted the Order Form, after which time it shall automatically lapse and be withdrawn.
2.7 NatureMetrics may accept or reject an Order Form at its discretion. An Order Form shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of (i) NatureMetrics’ written acceptance of the Order Form, or (ii) NatureMetrics performing the Services.
2.8 Rejection by NatureMetrics of an Order Form, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9 NatureMetrics may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.10 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
2.11 Once an Order Form has been accepted by NatureMetrics, the Customer may only cancel the Order Form if it does so in writing before NatureMetrics has dispatched the Kits to the Customer. NatureMetrics will confirm whether such cancellation attempt has been successful.
3.1 The price for the Services shall be as set out in the Order Form (the ‘Price’).
3.2 The Price is exclusive of the costs of delivery of the Samples from the Customer to NatureMetrics (including any costs associated with duties, taxes, complying with applicable customs laws, or obtaining the necessary licences, authorizations and/or permissions).
3.3 The Order Form shall set out:
(a) the costs of delivery of the Kits from NatureMetrics to the Customer; and
(b) applicable VAT (or equivalent sales tax).
3.4 The Customer shall pay any applicable VAT to NatureMetrics on receipt of a valid VAT invoice.
4.1 NatureMetrics shall invoice the Customer for the Services, partially or in full, at any time following acceptance of the Order Form.
4.2 The Customer shall pay all invoices (i) in full without deduction or set-off, in cleared funds within thirty (30) days of the date of each invoice; (ii) in the currency as specified in each invoice; and (iii) to the bank account nominated by NatureMetrics.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date, NatureMetrics may, without limiting its other rights:
(a) charge interest on such sums at five (5) per cent a year above the overnight rate of the Bank of Canada from time to time in force, in which case interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment; and
(b) withhold provision of the Final Report until such time as complete payment is received from the Customer, including any interest as calculated in accordance with this section 4.3.
5. NatureMetrics’ obligations
5.1 NatureMetrics shall use its reasonable endeavours to perform the Services in accordance with any timelines or end dates for performance specified in the Order Form. Services which do not have specified commencement or end dates shall be performed by NatureMetrics as soon as possible but, in any event, within a reasonable period of time.
5.2 The Services shall be deemed to have been completed at such time as the Customer is satisfied that the Services have been performed by NatureMetrics in full and in accordance with the terms of this Agreement.
5.3 Subject to section 5.4, if NatureMetrics fails to comply with the provisions of section 5.1 then the Customer may, at its option:
(a) refuse to accept any subsequent attempts to perform the Services and terminate the Contract immediately by written notice to NatureMetrics; and
(b) procure services similar to the Services from an alternative supplier.
5.4 The remedies set out in section 5.3 shall not be available to the Customer if the relevant delay in or failure of performance is caused by (i) the Customer’s failure to provide NatureMetrics with adequate instructions for performance, or (ii) Force Majeure.
6. Customer’s obligations
6.1 The Customer shall collect Samples only using the Kits and only in accordance with the instructions provided by NatureMetrics.
6.2 The Customer is solely responsible for:
(a) ensuring that all necessary safety procedures are in place when collecting Samples using the Kits;
(b) ensuring that individual Samples are of sufficient quality and volume to allow NatureMetrics to perform the relevant genetic analyses;
(c) ensuring that the Samples are sufficiently representative of the wider sampling area, and (if relevant) for all other aspects of experimental and/or sampling design;
(d) storing and packing the Samples in accordance with instructions provided by NatureMetrics, in order to ensure the Samples received by NatureMetrics are of sufficient condition to allow NatureMetrics to perform the relevant genetic analyses;
(e) submitting the Metadata to NatureMetrics (in either paper form or via NatureMetrics’ dedicated software application) in accordance with NatureMetrics’ instructions; and
(f) providing to NatureMetrics such further information about the Samples as is reasonably required by NatureMetrics in order to provide the Services, as requested by NatureMetrics from time-to-time.
6.3 If the Customer is not the intended end-user of the Services (for example, where the Customer is a
distributor of NatureMetrics’ Services):
(a) the Customer is required to procure written agreement from the end-user(s) of the Services to the provisions of these Conditions, and to draw the end-user(s) particular attention to the
provisions of sections 9 to 13 (inclusive); and
(b) the Customer shall be liable for any breach of the Contract by the end-user(s) as if such breach had been occasioned by the Customer itself.
6.4 The following provisions shall apply if the Customer becomes aware of the occurrence (or potential occurrence) of toxic or hazardous materials, or biological pollutants (‘Contaminants’) in the Samples or at the location from which Samples were taken:
(a) The Customer will, at its own cost, immediately provide to NatureMetrics all information as NatureMetrics deems necessary with regard to such Contaminants.
(b) NatureMetrics reserves the right to suspend the Services in the event Contaminants are present. Following consultation with the Customer, NatureMetrics may propose safety measures and adjustments to the Price to address the presence of Contaminants, and NatureMetrics shall re-commence the Services on receipt of the Customer’s written acceptance of the proposed safety measures and adjustments to the Price. The Customer shall be liable for all costs, losses and expenses incurred by NatureMetrics as a result of such suspension and re-commencement of the Services.
(c) Samples which are known or suspected of containing Contaminants – to the point where they may be considered harmful to health or to the environment – may not be submitted to NatureMetrics for analysis without the prior written consent of NatureMetrics. As a condition of providing its consent, NatureMetrics may require the Customer to accurately quantify (at its own cost, using a third-party provider as necessary) the nature and concentration of the suspected Contaminants, and provide this information to NatureMetrics.
(d) In all cases, NatureMetrics reserves the right to decline to accept, or to decline to carry out the Services, which in NatureMetrics’ reasonable opinion will present an unacceptable risk of harm to any person involved in the provision of the Services.
7. Delivery of Kits to the Customer
7.1 The Kits shall be delivered by NatureMetrics, or its nominated carrier (i) to the location, and (ii) in accordance with the timelines specified in, the Order Form. The Kits shall be deemed delivered on their arrival at such location.
7.2 Time of delivery is not of the essence. NatureMetrics shall use its reasonable endeavours to meet delivery dates but such dates are indicative only.
7.3 NatureMetrics shall not be liable for any delay in or failure of delivery caused by:
(a) the Customer’s failure to make the specified delivery location available;
(b) the Customer’s failure to provide NatureMetrics with adequate instructions for delivery; or
(c) Force Majeure.
7.4 Risk in the Kits shall pass to the Customer on delivery. Title to the Kits shall pass to the Customer once NatureMetrics has received payment in full and cleared funds for the Kits.
8. Delivery of Samples to NatureMetrics
8.1 Unless otherwise agreed between the parties, NatureMetrics shall arrange for the transport of the Samples to NatureMetrics’ laboratory, at the Customer’s cost.
8.2 Risk in the Samples shall pass to NatureMetrics on delivery. Following which, in the event that a Sample is lost or damaged while the responsibility of NatureMetrics, NatureMetrics’ liability shall be limited to providing the Customer with a refund for any Services the adequate provision of which depended on the lost or damaged Sample.
9. Reliance on Final Report
The Customer acknowledges that the Services (including the Final Report) do not purport to identify with complete certainty whether a species is present or absent at a particular location at a particular point in time. Rather, the nature of the technology underpinning the Services is such that any Species List (or equivalent) provided to the Customer can only indicate, by reference to expressed probabilities, the likelihood of a species being present or absent. As such, the Species List and the Final Report are by their nature informational only and are not intended to be advisory. Interpretation of the Final Report and any consequential decision-making are the sole responsibility of the Customer, and NatureMetrics does not accept any responsibility or liability in respect of actions taken by the Customer in reliance on the content of the Final Report.
10. Intellectual property rights – general
10.1 Other than as explicitly set out in these Conditions, no Intellectual Property Rights are transferred or licensed (whether implied or otherwise) to the Customer as a result of the Contract. In particular, all processes, techniques and know-how of NatureMetrics shall remain the property of NatureMetrics.
10.2 In the event that the Services requested by the Customer require the development by NatureMetrics of new assays or processes, then (i) NatureMetrics may charge costs additional to the Price in order to cover the costs of such development, and (ii) the Customer shall have no rights in or claim to those new assays or processes.
11. Intellectual property rights in Sample Data and Final Report
11.1 The following types of data are generated by NatureMetrics in the course of providing the Services:
(a) raw DNA sequence data, expressed in ‘ACGT’ format, derived from sequencing the DNA extracted from the Samples submitted by the Customer (‘Sequence Data’);
(b) a list of species detected in each Sample, including for each species the number of DNA sequences present in each Sample (‘Species List’); and
(c) other technical data generated during analysis of each Sample, for example data regarding DNA concentrations, number of PCR replicates, total read numbers, etc. (‘Technical Data’).
11.2 The following types of data (together, the ‘Metadata’) are generated by the Customer in the course of receiving the Services:
(a) the location/coordinates where each Sample was collected;
(b) data regarding the weather conditions at the time and place each Sample was collected; and
(c) data regarding the topographical conditions at the place each Sample was collected.
11.3 The Sequence Data, Species List, Technical Data, and Metadata shall together be referred to as the ‘Sample Data’. Which constituent elements of the Sample Data are actually compiled and/or provided to the Customer as part of the Services depends on the specific Services requested by the Customer, as set out in the Order Form.
11.4 Subject to section 11.7, in consideration of the Price payable under the Contract, and conditional on receipt of the Price and all other sums due from the Customer in respect of the Services, NatureMetrics hereby assigns, by way of present, and where appropriate, future assignment, to the Customer absolutely with full title guarantee and free of any encumbrances or moral rights all the present and future Intellectual Property Rights in the Sample Data and the Final Report.
11.5 NatureMetrics hereby waives (and shall ensure all of its relevant personnel have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to the Customer pursuant to section 11.4.
11.6 Subject to section 11.4, the Customer grants NatureMetrics and its Affiliates a perpetual, irrevocable, royalty-free, worldwide, non-exclusive licence to utilize the Sample Data, including the specific right to do or have done any or all of the activities set out in section 12.2.
11.7 The Customer acknowledges that in certain jurisdictions, applicable law may dictate that local governmental and/or regulatory institutions have rights in or to the Sample Data, and that such rights may, in full or in part, take precedence over or supersede the rights in the Sample Data expressed herein as belonging to the Customer and/or NatureMetrics.
12. Use of Sample Data outside provision of the Services
12.1 This section 12 sets out the various ways in which the Sample Data may be used by NatureMetrics and third parties, outside the scope of NatureMetrics delivering the Services to the Customer.
12.2 Pursuant to the licence granted to it in section 11.6, NatureMetrics shall be permitted to:
(a) anonymize the Sample Data, and aggregate them with data from other of NatureMetrics’ customers;
(b) use the Sample Data (whether aggregated with other data or not) for:
(i) purposes internal to NatureMetrics, including tracking and auditing of errors that occur during analysis of samples; and
(ii) purposes external to NatureMetrics, including taking anonymized Sample Data and:
(1) analyzing them algorithmically to better understand, for example, ecosystem quality;
(2) creating geographical maps of biodiversity risk; and
(3) making them available to third parties and/or the wider public, either commercially or without charge and with or without restrictions on the way such results may be used by those third parties;
(iii) any other purpose related to the business activities of NatureMetrics and its Affiliates at any time, including any future business activities (provided that the Sample Data are anonymized where such use will be external to NatureMetrics); and
(iv) making such back-up or archive copies of the Sample Data as NatureMetrics reasonably requires.
12.3 For the avoidance of doubt, in exercising its rights under section 12.2, NatureMetrics shall not without prior written permission of the Customer publish or otherwise make available to third parties the Final Report in substantially the form prepared for the Customer.
12.4 NatureMetrics will store the Sequence Data indefinitely, and at any time the Customer can request further analysis to be performed on the Sequence Data for an additional fee and at NatureMetrics’ sole discretion.
12.5 The Customer acknowledges that NatureMetrics may report to relevant authorities the presence or absence of certain species (whether NatureMetrics does so as a result of its legal and regulatory obligations, or on a voluntary basis). This reporting may cover, for example: (i) invasive non-native species (e.g. Japanese Knotweed and North American Signal Crayfish); (ii) various agricultural pests and diseases (e.g. various forms of potato blight); and (iii) insects, aquatic macroinvertebrates, and vertebrates which are classified according to the IUCN Red List.
12.6 The Sample Data and/or the Final Report may contain information on the presence or absence in certain locations of at-risk species. Both NatureMetrics and the Customer acknowledge the potential negative impact on those species that publishing this information may have (with regards to, for example, poaching risk), and so will act responsibly when deciding if and by what means to transmit this information outside of their respective businesses (with regard to, for example, NatureMetrics’ rights to do so pursuant to section 12.2(b)(ii)(3)).
13. Ongoing use and storage of Sample-extracted DNA
13.1 Immediately following completion of the provision of the Services pursuant to section 5.2:
(a) ownership of any remaining DNA material extracted from the Samples shall automatically be transferred from the Customer to NatureMetrics; and
(b) NatureMetrics shall be free to use such remaining DNA material for any purpose, including further research and development, and the Customer shall have no right or interest in any data or intellectual property right resulting from such additional use by NatureMetrics.
13.2 For the avoidance of doubt, the Intellectual Property Rights in the Metadata associated with any such remaining DNA material shall be licensed to NatureMetrics in accordance with section 11.6.
13.3 Subject to section 13.4 and unless otherwise agreed, NatureMetrics shall store the Samples for a period of one (1) year from receipt. During this period the Customer can request further analysis to be performed on the extracted DNA for an additional fee and at NatureMetrics’ sole discretion. Following the expiration of this period, NatureMetrics shall be free to retain or dispose of the Samples at its own discretion. NatureMetrics’ full DNA storage policy is available upon request.
13.4 In relation to Samples comprising soil: once NatureMetrics has extracted from the Samples the DNA required to perform the Services, NatureMetrics shall retain such soil Samples for a minimum period of ten (10) Business Days following provision of the Final Report to the Customer. If the Customer wishes the soil Samples to be preserved for longer than this period, it must advise NatureMetrics as such before this period expires and make arrangements with NatureMetrics to take back possession of the soil Samples. Following the expiration of this period, NatureMetrics shall be free to retain or dispose of the soil Samples at its own discretion.
14. Vampire sampler
If, as part of the Services, the Customer is hiring a vampire sampler device from NatureMetrics, the provisions of Schedule 1 shall apply.
15.1 NatureMetrics warrants that, at the time of performance:
(a) it has the right, power and authority to enter into this Agreement and grant to the Customer the rights (if any) contemplated in these Conditions and to perform the Services;
(b) the Services shall conform in all material respects to their description in the Order Form and shall be free from material defects; and
(c) any regulated tests it provides (including, for example, the great crested newt eDNA test) are conducted in accordance with the guidance provided by the applicable regulator and are ‘fit for purpose’ as designated by the regulator.
15.2 NatureMetrics makes no representation or warranty, either expressed or implied, that any of the Services based on any testing not prescribed by a regulator will be fit for any particular purpose.
15.3 The Customer warrants that it has provided NatureMetrics with all relevant, full and accurate information as to the Customer’s business and needs.
15.4 As the Customer’s sole and exclusive remedy, NatureMetrics shall, at its option, remedy, re-perform or refund the Services that do not comply with section 15.1, provided that:
(a) the Customer serves a written notice on NatureMetrics not later than ten (10) Business Days from performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects; and
(b) such notice specifies that some or all of the Services do not comply with section 15.1 and identifies in sufficient detail the nature and extent of the defects; and
(c) the Customer gives NatureMetrics a reasonable opportunity to examine the claim of the defective Services.
15.5 The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
15.6 Except as set out in this section 15, NatureMetrics:
(a) gives no warranties and makes no representations in relation to the Services; and
(b) shall have no liability for their failure to comply with the warranty in section 15.1,
and all warranties and conditions, whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
16. Limitation of liability
16.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this section 16.
16.2 Subject to sections 16.4 and 16.5, NatureMetrics’ total liability shall not exceed the sum of the Price payable by the Customer pursuant to the Contract.
16.3 Subject to sections 16.4 and 16.5, NatureMetrics shall not be liable for consequential, indirect or special losses.
16.4 The extent of a party’s liability in respect of any indemnities given by it under the Contract shall not exceed five (5) times the sum of the Price payable by the Customer pursuant to the Contract.
16.5 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
17. IPR indemnity
17.1 NatureMetrics shall at all times, on written demand, indemnify, and keep indemnified, the Customer from and against all losses, damages, liability, costs (including legal fees) and expenses incurred by the Customer as a result of or in connection with an IPR Claim.
17.2 The Customer agrees that:
(a) it will notify NatureMetrics in writing of any IPR Claim; and
(b) it will not, without first consulting with NatureMetrics, make any admission relating to the IPR Claim.
17.3 If an IPR Claim is made, or NatureMetrics anticipates that an IPR Claim might be made, NatureMetrics may, at its own expense and sole option, either:
(a) procure for the Customer the right to continue using the relevant Service which is subject to the IPR Claim; or
(b) replace or modify the relevant Service with non-infringing substitutes provided that:
(i) the performance and functionality of the replaced or modified item is at least equivalent to the performance and functionality of the original item;
(ii) there is no additional cost to the Customer; and
(iii) the provisions of the Contract shall apply to the replaced or modified Service.
18. Customer’s indemnity
The Customer shall at all times, on written demand, indemnify, and keep indemnified, NatureMetrics from and against all losses, damages, liability, costs (including legal fees) and expenses incurred by NatureMetrics as a result of or in connection with:
(a) the Customer’s breach of any of the Customer’s obligations under the Contract; and
(b) any claim made against NatureMetrics for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the use of the Metadata.
19.1 Each party undertakes that it shall keep any information that is confidential in nature concerning the other party including, any details of its business, affairs, customers, clients, suppliers, plans or strategy (‘Confidential Information’) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by section 19.2. For the avoidance of doubt:
(a) NatureMetrics’ obligations pursuant to this section 19 are subject to NatureMetrics’ rights set out in sections 11.6, 11.7, 12.2 and 12.5; and
(b) any geographic maps of biodiversity risk created by NatureMetrics using the Sample Data (pursuant to section 12.2(b)(ii)(2)) shall not constitute Confidential Information of the Customer.
19.2 A party may:
(a) subject to section 19.4, disclose any Confidential Information to any of its employees, officers, representatives or advisers (‘Representatives’) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this section 19 as if it were a party;
(b) disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
(c) subject to section 19.4, use Confidential Information only to perform any obligations under this Agreement.
19.3 This section 19 shall remain in force for a period of either:
(a) if the Contract is not terminated in accordance with section 21: five (5) years from the date on which NatureMetrics (in accordance with section 2.7) the Customer’s most recent Order Form; or
(b) if the Contract is terminated in accordance with section 21: three (3) years from the effective date of termination of the Contract.
19.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with the provisions of section 20.
20.1 Processing of personal information
20.1 The parties acknowledge that: (i) the subject-matter of processing and the nature and purpose of processing are the provision of the Services pursuant to the terms of the Contract; (ii) the duration of processing is for the duration of the provision of Services and for three (3) years following cessation of the provision of Services; (iii) the types of Personal Information will be personal and company information (for example name, job title, contact details, office address, site address) and as otherwise evident from the nature of the Services and the terms of any relevant Order Form; and (iv) the categories of data subjects will include Representatives of the Customer, in particular those commissioning the Services from NatureMetrics.
20.2The Customer shall at all times comply with all Data Protection Laws in connection with its processing of Protected Data pursuant to the Contract. The Customer shall ensure all instructions given by it to NatureMetrics in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
20.3 NatureMetrics shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws, the terms of the Contract, and the privacy notice which is available on NatureMetrics’ website (as may be amended from time-to-time).
20.4 NatureMetrics shall only process the Protected Data in accordance with this section 20 and the Contract (including when making any transfer to which section 20.9 relates), except to the extent:
(a) that alternative processing instructions are agreed between the parties in writing; or
(b) as otherwise required by applicable law (and it shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
20.5 NatureMetrics shall implement and maintain appropriate technical and organizational measures protect the Protected Data against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access.
20.6 NatureMetrics shall:
(a) not permit any processing of Protected Data by any Sub-Processor without the prior specific written authorization of the Customer;
(b) prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this section 20 (including those relating to sufficient guarantees to implement appropriate technical and organizational measures) that is enforceable by NatureMetrics and ensure each such Sub-Processor complies with all such obligations;
(c) remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
(d) ensure that all persons authorized by NatureMetrics or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
20.7 NatureMetrics shall notify the Customer to the extent it appoints Sub-Processors.
20.8 The Customer shall not unreasonably withhold, delay or condition any authorization requested by NatureMetrics pursuant to section 20.6(a).
20.9 NatureMetrics shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside Canada or the United Kingdom without the prior written authorization of the Customer.
20.10 NatureMetrics shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate NatureMetrics’ compliance with the obligations placed on it under this section 20 and to demonstrate compliance with the obligations on each party imposed by the Data Protection Laws, and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one (1) audit request in any 12-month period under this section 20.10).
20.11 NatureMetrics shall notify the Customer without undue delay and in writing on becoming aware of any Privacy Breach in respect of any Protected Data.
21.1 Either party may terminate the Contract at any time by giving notice in writing to the other party if:
(a) the other party commits a material breach of Contract and such breach is not remediable;
(b) the other party commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within fourteen (14) days of receiving written notice of such breach;
(c) the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within thirty (30) days after NatureMetrics has given notification that the payment is overdue; or
(d) any consent, licence or authorization held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
21.2 NatureMetrics may terminate the Contract at any time by giving notice in writing to the Customer if the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within thirty (30) days after NatureMetrics has given notification that the payment is overdue.
21.3 Subject to section 21.4, either party may terminate the Contract at any time by giving notice in writing to the other party if that other party:
(a) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
(b) is unable to pay its debts or if the non-defaulting party reasonably believes that to be the case;
(c) becomes the subject of a voluntary or involuntary petition into bankruptcy under the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3 or other applicable legislation;
(d) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
(e) has a resolution passed for its winding up;
(f) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
(g) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven (7) days of that procedure being commenced;
(h) has a freezing order made against it; or
(i) is subject to any events or circumstances analogous to those in sections 21.3(a) to (h) in any jurisdiction.
21.4 The right of a party to terminate the Contract pursuant to section 21.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
21.5 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
21.6 The following sections of these Conditions shall survive termination, howsoever caused: section 4 (Payment); 9 (Reliance on Final Report); 10 (Intellectual property rights – general); 11 (Intellectual property rights in Sample Data and Final Report); 12 (Use of Sample Data outside provision of the Services); 13 (Ongoing use and storage of Sample-extracted DNA); 15 (Warranty); 16 (Limitation of liability); 17 (IPR indemnity); 18 (Customer’s indemnity); 19 (Confidentiality); 20 (Processing of personal information); 21.5 and this section 21.6 (Effect of termination); 24.10 (Severance); 24.11 (Waiver); 24.15 (Third-party rights); 24.16 (Governing law); and 24.17 (Jurisdiction); together with any other provision of these Conditions which expressly or by implication is intended to survive termination.
22.1 Each party shall comply with applicable law with regard to bribery and anti-corruption, including ensuring that it has in place adequate procedures to prevent bribery and ensure that:
(a) all of that party’s personnel;
(b) all others associated with that party; and
(c) all of that party’s sub-contractors;
involved in performing the Contract so comply.
22.2 Without limitation to section 22.1, neither party shall make or receive any bribe or other improper payment, or allow any such to be made or received on its behalf, either in Canada or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
22.3 The Customer shall immediately notify NatureMetrics as soon as it becomes aware of a breach by the Customer of any of the requirements in this section 22.
23.1 NatureMetrics and the Customer shall comply with all anti-slavery legislation that is applicable to their operations and their performance of their obligations under this Agreement.
23.2 The Customer confirms and agrees that it has implemented due diligence procedures to ensure compliance with any and all applicable anti-slavery legislation in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to NatureMetrics on request at any time throughout the Contract.
23.3 The Customer shall notify NatureMetrics immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under section 23.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
24. General provisions
24.1 Force majeure. Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than nine (9) calendar months, either party may terminate the Contract by giving thirty (30) days’ prior written notice to the other party.
(a) Notices under this Agreement shall be in writing and sent to:
(i) in the case of NatureMetrics, either by email to eDNAemail@example.com, or by post to 590 Hanlon Creek Boulevard, Unit 11, Guelph, Ontario, N1G 3M5; and
(ii) in the case of the Customer, either by email to the email address as set out in the Order Form, or by post to the Customer’s registered office address as set out in the Order Form.
(b) Notices may be given, and shall be deemed received:
(i) by first-class post: two Business Days after posting;
(ii) by hand: on delivery; and
(iii) by e-mail: 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received, or on receipt of confirmation of receipt from the recipient.
(c) This section 24.2 does not apply to notices given in legal proceedings or arbitration.
24.3 Further assurance. Each party shall at the request of the other party, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to the Contract.
24.4 Entire agreement. The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. Nothing in these Conditions purports to limit or exclude any liability for fraud.
24.5 Variation. No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
24.6 Assignment. The Customer may not assign, subcontract or encumber any of its rights or obligations under the Contract, in whole or in part, without the prior written consent of NatureMetrics. NatureMetrics may assign, subcontract or encumber any of its rights or obligations under the Contract, in whole or in part, without the prior written consent of the Customer.
24.7 Set off. NatureMetrics shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
24.8 No partnership or agency. The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
24.9 Equitable relief. The Customer recognises that any breach or threatened breach of the Contract may cause NatureMetrics irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to NatureMetrics, the Customer acknowledges and agrees that NatureMetrics is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
24.10 Severance. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
24.11 Waiver. No failure, delay or omission by NatureMetrics in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy. No single or partial exercise of any right, power or remedy provided by law or under the Contract by NatureMetrics shall prevent any future exercise of it or the exercise of any other right, power or remedy by NatureMetrics.
24.12 Compliance with law. Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under the Contract it will comply with all applicable law, provided that neither party shall be liable for any breach of this section 24.12 to the extent that such breach is directly caused or contributed to by any breach of the Contract by the other party.
24.13 Conflicts within contract. If there is a conflict between any of the provisions of these Conditions, the Schedules, and/or the Order Form, the following descending order of priority applies:
(a) the terms of section 20 of these Conditions (Processing of personal information);
(b) the terms of the Order Form; and
(c) all other provisions of these Conditions.
24.14 Costs and expenses. Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
24.15 Third-party rights.
(a) Except as expressly provided for in section 24.15(b), a person who is not a party to the Contract shall not have any rights to enforce any of the provisions of the Contract.
(b) Any Affiliate of NatureMetrics shall be entitled to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
24.16 Governing law. The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
24.17 Jurisdiction. The parties irrevocably agree that the courts of the Province of Ontario shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
24.18 English Language. It is the wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.