NatureMetrics Terms and Conditions

Portfolio - Additional Service Terms: Kits & Tests

Portfolio - Additional Service Terms: Kits & Tests

These service terms ('Kits & Tests Service Terms') set out the legal terms that apply to Customer's use of the 'Kits & Tests' service ('Kits & Tests Service').

Defined terms not defined herein are as set out in the Order Form and Portfolio Terms. The following definitions apply in these Kits & Tests Service Terms:

'Final Report' means the report (and any data therein) provided to Customer by Supplier detailing the results of the analyses conducted as part of the Kits & Tests Services (regardless of whether these results are provided within a self-contained document, or via an online web portal or app).

'Kit' means a sampling kit (including instructions) to be provided by Supplier as part of the Kits & Tests Services, which Customer can use to collect Samples.

'Sample' means the collection of organisms or a sample of organic/environmental material supplied by Customer on which Supplier shall perform the genetic analyses relevant to the Kits & Tests Services.

Supplier Background IPR’ means (i) the format of the Final Report and all data charts within it, (ii) the algorithms, techniques and know-how used to generate the Final Report, (iii) photographic images contained within the Final Report, and (iv) all technical data generated during analysis of each sample commissioned or supplied by Customer (including but not limited to location and topographical data).

1.            Kits & Tests Service

1.1          The 'Kits & Tests Service' allows Customer to, amongst other things, (i) receive the Kits from Supplier (the number of which is as set out in the Order Form), (ii) use the Kits for collecting Samples, and (iii) on receipt of the Samples back from Customer, for Supplier to carry out a genetic analysis of those Samples for the presence or absence of certain species' DNA.

1.2          The results of the Kits & Tests Service shall be provided to Customer in a Final Report. The Final Report may be made available to Customer via the Platform or other appropriate communication channels (as determined by Supplier's sole discretion, acting reasonably).

1.3          If the Final Report becomes available after the end of the Subscription Period, Supplier may at its sole discretion, make the Final Report available to Customer by such means it deems appropriate.

1.4          Supplier shall use reasonable endeavors to perform the Kits & Tests Service 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 Supplier as soon as possible but, in any event, within a reasonable period of time.

2.            Delivery of Kits

2.1          Unless otherwise agreed, the Kits shall be delivered to Customer's address specified in the Order Form. The Kits shall be deemed delivered on their arrival at such location. Time of delivery is not of the essence.  Supplier shall use its reasonable endeavors to meet delivery dates but such dates are indicative only.

2.2          Supplier shall not be liable for any delay in or failure of delivery caused by: (a) Customer's failure to make the specified delivery location available; (b) Customer's failure to provide Supplier with adequate instructions for delivery; or (c) a Force Majeure Event.

2.3          Risk in the Kits shall pass to Customer on delivery. Title to the Kits shall pass to Customer once Supplier has received payment from Customer in accordance with the Agreement.

3.            Sample collection

3.1          Customer is solely responsible for:

(a)       unless otherwise agreed, for collecting Samples only using the Kits and only in accordance with the instructions provided by Supplier;

(b)       ensuring that all necessary safety procedures are in place when collecting Samples using the Kits;

(c)       ensuring that individual Samples are of sufficient quality and volume to allow Supplier to perform the relevant genetic analyses;

(d)       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;

(e)       storing and packing the Samples in accordance with instructions provided by Supplier, in order to ensure the Samples received by Supplier are of sufficient condition to allow Supplier to perform the relevant genetic analyses;

(f)        ensuring that it has in place any required permits or approvals to collect and remove the Samples in compliance with applicable local law where the Samples are collected (and providing copies of such upon request by Supplier); and

(g)       providing to Supplier such further information about the Samples as is reasonably required by Supplier in order to provide the Kits & Tests Services, as requested by Supplier from time to time.

3.2          Customer must not submit for analysis without the prior written consent of Supplier any Samples which are known or suspected of containing toxic or hazardous materials, or biological pollutants ‑ to the point where they may be considered harmful to health or to the environment. As a condition of providing its consent, Supplier may require 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 Supplier.

4.            Delivery and storage of Samples

4.1          Unless otherwise agreed, Supplier shall arrange for the transport of the Samples from Customer's address (as specified in the Order Form) to Supplier's laboratory. Customer is responsible for ensuring the transportation of Samples complies with applicable local laws (including but not limited to export laws). Customer shall follow any reasonable instructions issued by Supplier and/or a courier in respect of the transportation, packaging, and shipping of Samples. The performance of the Kits & Tests Services is subject to Customer’s accurate and timely completion and return of the sample manifest form provided by Supplier

4.2          Ownership and risk in the Samples shall pass to Supplier on delivery. Following which, in the event that a Sample is lost or damaged while under the responsibility of Supplier, Supplier's liability shall be limited to providing Customer with a refund for the affected part of the Kits & Tests Service.

4.3          Subject to section 4.4 and unless otherwise agreed, Supplier shall store the Samples for a period of 1 year from receipt. During this period Customer can request further analysis to be performed on the extracted DNA for an additional fee and at Supplier's sole discretion. Following the expiration of this period, Supplier shall be free to retain or dispose of the Samples at its own discretion.

4.4          In relation to Samples comprising soil: once Supplier has extracted from the Samples the DNA required to perform the Services, Supplier shall retain such soil Samples for a minimum period of 10 business days following provision of the Final Report to Customer. If Customer wishes the soil Samples to be preserved for longer than this period, it must advise Supplier as such before this period expires and make arrangements with Supplier to take back possession of the soil Samples. Following the expiration of this period, Supplier shall be free to retain or dispose of the soil Samples at its own discretion.

4.5          Following delivery of the Final Report to Customer, Supplier shall be free to use any remaining DNA material in the Sample for any purpose, including further research and development, and Customer shall have no right or interest in any data or intellectual property right resulting from such additional use by Supplier.

5.           Shipping costs

5.1          Notwithstanding section 10.5 of the Portfolio Terms:

(a)       if shipping costs (or costs associated with duties, taxes, complying with applicable customs laws, or obtaining the necessary licences, authorizations and/or permission) or any other third party costs outside Supplier's control increase more than 5% over the course of a Subscription Period; or

(b)       Customer changes the shipping address in the Order Form and such change causes an increase in shipping costs (or costs associated with duties, taxes, complying with applicable customs laws, or obtaining the necessary licences, authorizations and/or permission) or any other third party costs outside Supplier's control,

then Supplier shall separately invoice Customer for such increased costs. Customer shall pay the invoice within the time period set out on the invoice, or otherwise within 30 days of the date of the invoice.

6.           Warranty

6.1          Supplier warrants that, at the time of performance: (a) the Kits & Tests Services shall conform in all material respects to their description in the Order Form and shall be free from material defects; (b) the Kits & Tests Services shall be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; 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 at the time of performance.

6.2          As Customer's sole and exclusive remedy, Supplier shall, at its option, remedy, reperform or refund the Kits & Tests Services that do not comply with section 6.1, provided that:

(a)       Customer serves a written notice on Supplier not later than 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 Kits & Tests Services do not comply with section 6.1 and identifies in sufficient detail the nature and extent of the defects; and

(c)       Customer gives Supplier a reasonable opportunity to examine the claim of the defective Kits & Tests Services.

6.3          Supplier makes no representation or warranty, either expressed or implied, that any of the Kits & Tests Services based on any testing not prescribed by a regulator will be fit for any particular purpose. Customer acknowledges that calculation methods are constantly evolving depending on academic studies published and that metrics provided as part of the Kits & Tests Service may change from time to time on this basis. Supplier will use reasonable endeavors to explain such changes where they are material.

6.4          Except as set out in this section 6, Supplier:

(a)       gives no warranties and makes no representations in relation to the Kits & Tests Services; and

(b)       shall have no liability for their failure to comply with the warranty in section 6.1, and all warranties and conditions (including the conditions implied by ss 12‑16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

7.            Accuracy of Samples. Supplier cannot be responsible for the accuracy of information or data in the Final Report if, when collecting the Samples and returning the Samples (including any additional information to Supplier), Customer does not follow the instructions provided by Supplier.

8.            Intellectual property rights in Final Reports

8.1          In respect of any Final Reports created in respectof a Project Partner Agreement, Customeracknowledges and agrees that Supplier (or its licensors) owns all intellectualproperty rights in or relating to the Final Reports and Supplier Background IPRand that no rights therein are granted to Customer, other than a sole, perpetualnon-transferrable, non-sublicensable licence to use the Final Report for thatspecific Customer’s business purposes including the right to make all or partof the Final Report public subject to the inclusion of the notice “© NatureMetrics [year]”  (provided that where partly published, thepublished element reflects the Final Report as a whole). The foregoing licencedoes not include the right for Customer to exploit the Final Report or SupplierBackground IPR for direct commercial gain or facilitate any third party indoing so unless expressly agreed in writing by Supplier. Any non-compliance by Customer with the terms of thelicence granted in this clause, shall entitle Supplier to revoke the licenceupon written notice.

8.2          Nothing in these Kits & Tests Service Terms transfers any intellectual property rights owned by Customer to Supplier.

8.3          Customer acknowledges that in certain jurisdictions, applicable law or regulation may dictate that local governmental and/or regulatory institutions have rights in or to the Final Report (including any part thereof), and that such rights may, in full or in part, take precedence over or supersede the rights in the Final Report expressed herein as belonging to Customer and/or Supplier.

9.            Confidentiality obligations of Supplier in relation to the Final Reports and Supplier Background IPR

9.1          Notwithstanding clause 8.1, Supplier shall not without prior written permission of Customer (which may be given or withheld at the sole discretion of Customer) publish or otherwise make available to third parties a non-anonymized copy or extract of the Final Reports and the confidentiality provisions set out in clause 16 of the Portfolio Terms shall apply to any information in the Final Report that identifies or could reasonably identify Customer. The Final Report may contain information on the presence or absence in certain locations of at-risk species. Both Supplier and 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.

9.2          Supplier's obligations pursuant to section 16 of the Portfolio Terms are subject to Supplier's rights set out in sections 8.3, and 9.1 of these Kits &Tests Service Terms.

10.         Reliance on Kits & Tests Services. Customer acknowledges that the Kits & Tests Services 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 Kits & Tests Services is such that any Species List (or equivalent) provided to Customer can only indicate, by reference to expressed probabilities, the likelihood of a species being present or absent, by reference to the techniques routinely used in the market at that time. As such, the Species List is by its nature informational only and is not intended to be advisory. Interpretation of the Final Report and any consequential decision making are the sole responsibility of Customer, and Supplier does not accept any responsibility or liability in respect of actions taken by Customer in reliance on the content of the Final Report.  

11.          Reporting and regulatory obligations. Customer acknowledges that Supplier may report to relevant authorities the presence or absence of certain species as a result of Supplier's legal and regulatory obligations.

These Kits & Tests Service Terms were published on 8th February 2024.

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