Capitalized terms used but not defined in this Agreement have the meanings given to them in the Order Form. To the extent of any conflict between an Order Form and this Agreement, this Agreement will prevail.
- Services. Subject to the terms and conditions of this Agreement and any Order Form, in exchange for the Fees, we will provide you with the services (the "Services") and the deliverables (the "Deliverables") expressly set out in an Order Form.
- Service Changes. The Services may be amended, modified or supplemented at any time and from time to time with mutual consent and in a written form satisfactory to us (a "Change Order").
- Subcontractors. We may from time to time engage third parties (each a "Subcontractor"), such as independent contractors, affiliates, service providers, licensees and agents, to perform any part of the Services or any part of its obligations under this Agreement. We will: (a) remain directly responsible to you for the acts or omissions of each Subcontractor; and (b) ensure that each Subcontractor is bound in writing to terms equally as protective of you as the terms and conditions of this Agreement.
- Performance Standards. We hereby represent and warrant to you that our performance of the Services under this Agreement will be in compliance at all times with all applicable foreign, federal, state, provincial and local statutes, orders and regulations, including without limitation, applicable anti-SPAM laws, privacy laws and data protection laws.
- Your Responsibilities. From time to time and upon request by us, you will provide us with reasonable assistance necessary for our performance of the Services, which may include without limitation, your providing us with information, materials or approvals.
- FEES AND PAYMENT TERMS
- Fees. You will pay to us the fees in the amounts, at the times and according to the terms set out in the Order Form (the "Fees"). All Fees payable under this Agreement are exclusive of any and all taxes, withholdings and other levies and imposts applicable thereon ("Taxes"), and such Taxes will be invoiced together with the Fees. Invoices under this Agreement are payable, without holdback or setoff, within thirty (30) days of delivery, except where such Fees invoiced are disputed by you in good faith. Invoice disputes will not affect the undisputed portions of the Fees payable by you. Except as expressly set out in this Agreement or the Order Form, all Fees paid to us are non-refundable.
- Failure of Payment. Interest will accrue on amounts past due at a rate of ten percent (10%) per annum. Without limiting any other remedy available to us by law or equity, in the event that your payment obligations are overdue and outstanding for a period of fifteen (15) days, we may, in our sole discretion: (a) terminate this Agreement immediately upon notice to you; and/or (b) suspend our obligations to you relating to the Services and Deliverables until such time as all amounts due and owing to us under this Agreement are paid in full.
- TERM AND TERMINATION
- Term and Term Extension. The term of this Agreement will commence on the Effective Date and, unless earlier terminated pursuant to this Agreement, will remain in effect for two (2) years thereafter (the "Expiry Date"). In the event that the Service Period of an Order Form extends past the Expiry Date, this Agreement will automatically be extended until such Service Period terminates or expires in accordance with the applicable Order Form.
- Termination for Convenience. Either party may terminate this Agreement for any or no reason by providing the other party with thirty (30) days' prior written notice. If we terminate this Agreement pursuant to the foregoing, you will be entitled to a refund upon termination in the prorated amount equal to the Fees prepaid by you for any period after the termination effective date. In no event will termination relieve you of your obligation to pay any Fees payable to us for Services provided prior to the termination effective date.
- Termination for Cause. Either party may immediately terminate this Agreement with notice if the other party: (a) fails to perform its obligations under this Agreement and such failure continues for a period of thirty (30) days after written notice; (b) materially breaches a covenant, warranty or representation provided under this Agreement; (c) ceases to carry on its business as a going concern; or (d) becomes subject to proceedings concerning its bankruptcy, receivership, insolvency or the like, or if a receiver is appointed for all or substantially all of its assets and that event prevents such party from performing its material obligations under this Agreement.
- No Order Form. Either party may immediately terminate this Agreement for any or no reason with notice to the other party if there is no Order Form in effect as at such date.
- Effect of Termination. Upon expiry or earlier termination of this Agreement for any reason: (a) all Order Forms in effect as at such date will immediately terminate; (b) you will pay to us any accrued and unpaid Fees as at such date; and (c) any provision of this Agreement that imposes an obligation after termination of this Agreement will survive the termination of this Agreement, including without limitation, Sections 2, 3, 5 and 7 to 10 (inclusive).
- PROPRIETARY RIGHTS
- Discover Therapies IP. As between the parties, the Discover Therapies IP (defined in Section 11) is and will at all times remain our sole and exclusive property. You acknowledge that you are only obtaining a limited right to use and access the Discover Therapies IP to receive the benefit of the Services during the term of this Agreement.
- Customer IP. To the extent that you provide us with any materials or other intellectual property ("Customer IP") for use in connection with our provision of the Services, you will retain ownership to any such Customer IP. You hereby grant to us a non-exclusive, royalty-free license to use any such Customer IP in connection with our performance of the Services and other obligations under this Agreement. You are solely responsible for the accuracy, adequacy and completeness of any Customer IP provided to us. We will retain a perpetual, non-exclusive license to any data collected by us in your use of the Services, provided such data is in a non-personally identifiable, aggregated form.
- Non-Disclosure. Receiving Party hereby acknowledges that the Disclosing Party's Confidential Information is an asset of considerable value, the unauthorized use or disclosure of which would be damaging (all aforementioned terms being defined in Section 11). Receiving Party will, during and subsequent to the term of this Agreement: (a) keep the Confidential Information of the Disclosing Party confidential and use such Confidential Information solely for the purposes of exercising its rights and performing its obligations under this Agreement; (b) not directly, or indirectly, without authorization from the Disclosing Party reveal, report, publish, disclose or transfer such Confidential Information to any third party; (c) utilize procedures constituting a high degree of care to maintain the security of such Confidential Information and in no event less than a reasonable standard of care under the circumstances; (d) disclose such Confidential Information to its employees, consultants and, in our case, our Subcontractors, solely on a need-to-know basis as reasonably required under this Agreement, provided that, any access or disclosure to the Disclosing Party's Confidential Information that is granted by the Receiving Party to its employees and consultants will first require the Receiving Party to enter into a written agreement with each such employee and consultant that contains confidentiality obligations and intellectual property ownership terms that are in content at least as protective as the provisions hereof. If a Receiving Party is required by law or court order to disclose any Confidential Information of the Disclosing Party, such Receiving Party will: (I) first notify the Disclosing Party of same in writing and without delay; and (II) cooperate with the Disclosing Party, and use its own best efforts, to limit any such disclosure to the minimum disclosure necessary to comply with such law or court order.
- Return of Confidential Information. Subject to the terms of this Agreement, Receiving Party will return or irretrievably destroy the Confidential Information of the Disclosing Party within twenty (20) days after such request from the Disclosing Party. If so applicable and requested by the Disclosing Party, the Receiving Part will provide a certificate of return or destruction within five (5) days thereafter.
- Injunctive Relief. Each party acknowledges and agrees that should it breach its obligations under this Section 5, the other party may suffer harm which may not be adequately compensated by monetary damages. In such event, the non-breaching party may, in addition to any other remedy available in law or equity, seek specific performance and injunctive or other equitable relief without bond or proof of damages.
DISCLOSURE OF PATIENT DATA
We will only disclose personally identifiable information of our users ("Patient Data") with their prior consent and in accordance with our website policies and applicable law.
- If you are a Trial Sponsor (as indicated in the Order Form), we will not disclose Patient Data with you, but will instead disclose, to each Authorized Clinic identified in the Order Form, such Patient Data as is minimally relevant for the applicable clinical trial contemplated in the Order Form; and
- If you are a Trial Clinic, we will disclose with you such Patient Data as is minimally relevant for the applicable clinical trial contemplated in the Order Form.
Patient Data is our Confidential Information.
Except for the express warranties specified in this Agreement (which includes any Order Form), the Services and Deliverables are provided "as is" and "as available", and we hereby disclaim any and all warranties, representations and guarantees with respect to the Services and Deliverables, whether express, implied, statutory or otherwise, including without limitation, warranties or conditions of merchantability, non-interruption, error-free or fitness for a particular purpose. For certainty, we make no warranty or guarantee with respect to the results of your using the Services. The foregoing disclaimer will apply to the fullest extent permitted by law.
WE WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE.
OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY YOU TO US UNDER THE ORDER FORM IN RESPECT OF WHICH THE CLAIM AROSE.
You will defend, indemnify, save and hold us (which for the purposes of this Section includes our officers, directors, partners, employees and Subcontractors) harmless against and from any and all third party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges (collectively the "Damages") incurred or suffered by us as a result of: (a) any material non-fulfillment or breach of any warranty or covenant, or any material misrepresentation, under this Agreement by you; or (b) any fraud, willful misconduct or gross negligence committed by you.
- Interpretation. In this Agreement headings and sub-headings are inserted for ease of reference and do not affect the interpretation of the Agreement and the singular includes the plural and vice versa.
- Modification, Waiver and Severability. No modification of this Agreement or any Order Form will be deemed effective unless in writing and signed by duly authorised representatives of each party. No waiver of any right included herein will be deemed effective unless in writing and signed by the party against whom enforcement of the waiver is sought. If any of the provisions or a portion of any provision of this Agreement is held to be unenforceable or invalid by an arbitrator or a court of competent jurisdiction, the validity and enforceability of the enforceable portion of any such provision and/or the remaining provisions will not be affected.
- Applicable Law. This Agreement, and all claims arising from or related to this Agreement, will be governed and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
- Independent Contractor. The parties are non-exclusive, independent contracting parties. Nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the parties.
- Notices. Any notice, report or other communication required or permitted to be given under this Agreement will be in writing and deemed to have been received if sent to the address or email address set out in the Order Form, or such other address or email address as a party may request by notice. Communications that are delivered in person or by courier will be deemed to have been received upon delivery; communications transmitted by email will be deemed to have been received the day of having been sent; and communications that are sent by mail will be deemed to have been received eight (8) days after being mailed.
- Force Majeure. If we are prevented from or interfered with in any manner whatsoever, or otherwise delayed, in performing the Services or any other obligations hereunder, by reason of any event beyond our reasonable control (an "Event of Force Majeure"), then our non-performance will not be deemed a breach of this Agreement provided that notice is given to you without delay, and our obligations hereunder will be extended by such reasonable amount of time determined by us in good faith. Any delays in our performance of the Services as a result of an Event of Force Majeure will similarly extend your payment obligations for such Services.
- Entire Agreement and Assignment. This Agreement contains the entire agreement and understanding between the parties regarding the subject matter contained herein and supersedes all prior negotiations, representations, or agreements, written or oral. This Agreement will not be assigned by you without our prior written consent. We may assign this Agreement upon delivery of notice to you. This Agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
- Disputes. In the event of any dispute between the parties relating to this Agreement (or any Order Form), prior to pursuing any legal remedy or recourse, the parties will attempt to resolve such dispute in good faith negotiations involving senior management of each party.
- Counterparts. Any Order Form may be executed and delivered electronically and in two or more counterparts, and such counterparts will together constitute one and the same instrument and notwithstanding the date of execution will be deemed to bear the effective date expressly stated therein.
- "Confidential Information" means information that is not generally known to the public or that otherwise constitutes a trade secret under applicable law, including without limitation, technical information, know-how, technology, software applications and code, prototypes, ideas, inventions, methods, improvements, data, files, information relating to patient identities and other medical information; provided that, Confidential Information does not include any of the foregoing information that: (i) has entered into the public domain through no wrongful act or breach of any obligation of confidentiality by the Receiving Party; (ii) was in the lawful knowledge and possession of, or was independently developed by, the Receiving Party prior to the time it was disclosed to, or learned by, the Receiving Party hereunder as evidenced by written records; (iii) was rightfully received by Receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (iv) was approved in writing for release by the Disclosing Party. Confidential Information includes such information that was disclosed by the Disclosing Party to the Receiving Party prior to the Effective Date.
- "Disclosing Party" means the party who discloses or otherwise divulges Confidential Information to the other party.
- "Discover Therapies IP" means the materials, computer programs and other proprietary items, and all improvements, changes, enhancements and components thereof that are developed, delivered, provided or used by us in the course of performing the Services, as well as all other intellectual property owned or developed by us independent of or prior to this Agreement, including without limitation, any and all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how, including any underlying source code and object code relating to the Discover Therapies platform and service. For certainty, Discover Therapies IP includes any material that is not Customer IP.
- "Order Form" means a document, or a series of documents, fully executed by both of the parties hereto, under and governed by the terms and conditions of this Agreement, in a written form satisfactory to us, which document(s) describe, among other things, the specific Services to be provided by us to you, and the specific terms and conditions relating to same. Order Forms (as such term is used herein) include: (a) any and all renewals thereof agreed to between the parties in writing; and (b) any and all Change Orders (defined in Section 1.2) relating thereto.
- "Receiving Party" means the party who receives or otherwise obtains Confidential Information from the Disclosing Party or from the Disclosing Party's employees, agents, representatives, consultants, clients, contractors or suppliers.