Terms and Conditions 2023
These Terms and Conditions shall govern the supply of Services by Fusion Antibodies plc to the exclusion of all other terms, conditions and representations unless stated within the Quotation, including any terms or conditions which You purport to apply under any document whatsoever and whenever.
The parties’ agreement is made up of (i) these Terms and Conditions; (ii) the Quotation (as defined below); and (iii) any other written document either issued by Fusion Antibodies plc (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Fusion Antibodies plc may, acting in its sole discretion, amend these Terms and Conditions from time to time. Each time Client enters into a new Quotation with Fusion it should check these Terms and Conditions to ensure that it understands the terms which will apply to the Contract at that time. These Terms and Conditions were most recently updated on 7th March 2023
No variation of these Terms and Conditions shall be valid unless agreed in writing by Fusion Antibodies plc.
“Foreground IP” means Intellectual Property Rights arising from the performance of the Services that is not Fusion Foreground IP;
“Background IP” means, with respect to a party, any Intellectual Property Rights of any kind, whether registered or unregistered, that is either (a) owned or controlled by such party or any of its affiliates prior to the date on which the relevant Contract is entered into; or (b) developed or acquired by such party independently from the performance of activities under a Contract and without use of the other party’s proprietary materials or Confidential Information, including in Fusion Antibodies plc’s case, Fusion Antibodies plc’s methodologies, know-how and technologies facilitating Fusion Antibodies plc’s provision of the Services (including its Standard CDRx™ Humanisation and R.A.M.P. platforms and other in-silico technologies), and in the Client’s case, the Client Antibody or Protein;
“Charges” means the fees payable in respect of Fusion Antibodies plc’s performance of the Services;
“Client” or “You” means the legal person to whom a Quotation is addressed or who otherwise submits materials for analysis by Fusion Antibodies plc;
“Confidential Information” means the terms of the Contract and any information marked secret or confidential or commercial, financial, marketing, technical or other information that is of value or ought reasonably and in good faith to be treated as confidential taking account of its content or the circumstances of disclosure, in any form or medium whether disclosed orally or in writing before or after the date of the Contract, together with any reproductions of such information in any form or medium or any part of such information and the work which is the product of the Services.
“Contract” means any contract for the supply of Services between Fusion Antibodies plc and You, formed as set out in Condition 2a) incorporating these Terms and Conditions;
“Data” means the raw data generated in the performance of the Services relating specifically to the materials submitted by You;
“Deliverables” means the work product arising out of performance of the Services;
“Expenses” means travel, accommodation, packing, transport, materials, customs and courier fees, equipment hire and any other costs incidental to the performance of the Services which will be charged at cost;
“Facility” means Fusion Antibodies plc’s facilities located at 1 Springbank Road, Springbank Industrial Estate, Belfast BT17 0QL;
“Fusion Antibodies plc” means Fusion Antibodies plc, a public limited company listed on AIM, a market operated by the London Stock Exchange and incorporated in Northern Ireland under company number NI039740, whose registered office address is 1 Springbank Road, Springbank Industrial Estate, Belfast BT17 0QL.
“Fusion Foreground IP” means any improvement, change, amendment, addition or refinement to Fusion’s Background IP.
“Intellectual Property Rights” means all forms of intellectual property rights including but not limited to patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, as well as any data, information and other technical or commercial know- how or copyright protected works which are not publicly available;
“Quotation” means a written communication from Fusion Antibodies plc to the Client setting out details of the Services to be performed and the charging basis therefore;
“Report” means any report, certificate of analysis, presentation or other summary (in whatever form) of results or findings generated in the performance of the Services, prepared by Fusion Antibodies plc for You;
a) scientific analysis services;
b) scientific consultancy services; and/or
c) any other services
in each case, supplied to You by Fusion Antibodies plc
2. Quotation, Charge, Expenses, and Incoterms
a) A Quotation issued by Fusion Antibodies plc shall be deemed to be an offer by Fusion Antibodies plc to provide the Services subject to the terms therein and to these Terms and Conditions. A Contract will be formed upon acceptance of the Quotation by You in the form of a purchase order (by countersigning and returning the same to Fusion Antibodies plc)) within the period of validity stated therein. In addition, a separate Contract shall be formed whenever you submit specific project related materials to Fusion Antibodies plc for analysis in respect of which no Quotation has been given (Your delivery of such materials to Fusion Antibodies plc constituting the offer and Fusion Antibodies plc’s commencement of performance of the requested Services constituting acceptance). The Contract shall constitute the entire agreement between us for the supply of the Services and You acknowledge you have not relied on any representation, agreement or understanding which is not set out therein.
b) A Quotation may specify that the Services will be charged at a fixed fee or on a time and materials basis unless stated. The Charges will be as specified in the Quotation or otherwise communicated in writing by Fusion Antibodies plc to You. Charges set out in the Quotation (or other written communication) include consumables unless specified otherwise but do not include Expenses which will be charged in addition.
c) If ‘out-of-specification’ or ‘out-of-trend’ results are obtained during delivery of the Services, any additional investigation into such results shall be subject to additional Charges, to be agreed between the parties.
d) All Charges referred to in the Quotation (or other written communication) are exclusive of VAT. VAT, where applicable, shall be listed as a line item in the invoice.
e) IncoTerms: Save as otherwise provided in these conditions, trade terms shall be interpreted in accordance with “Incoterms 2020” (The international rules for the interpretation of trade terms of the International Chamber of Commerce). Shipment of goods will be “ex works” in accordance with Incoterms 2020.
3. Payment Terms and Settlement
a) You shall pay the Charges for the Services and related Expenses (and any other charges for separately quoted consumables or courier or storage charges referred to in Condition 4c), together with the VAT thereon, upon receipt of Fusion Antibodies plc’s invoice. Invoices shall be issues and payment made in the currency of this quotation. Invoices are due for payment immediately, and payable within 30 days of the date of invoice unless otherwise agreed in writing by Fusion Antibodies plc. Set up payments are required to cover the commitment of significant commitment Fusion Antibodies plc resources at the commencement of the project workplan. These resources include (but are not limited to), specialist consumables; expertise and time spent in setting up and commencing the work, and reservation times of specific lab space and equipment exclusive to the project. Resources committed in this way are considered to contribute to value the Client’s project at point of commitment and are deemed as delivered at the point of commitment and are not refundable.
b) The Charges and Expenses shall be invoiced to you in accordance with the invoicing schedule set out in the Quotation, or, if no schedule is specified (or Services are not based on a Quotation), upon completion of the Services (as determined by Fusion Antibodies plc). Any other charges referred to in Condition a) shall be invoiced as and when incurred.
c) Except where otherwise agreed with Fusion Antibodies plc, payment should be made by the method specified on the invoice or remittance advice.
d) If You fail to make any payment within 30 days of the date of invoice Fusion Antibodies plc reserves the right, without prejudice to its other rights and remedies: (i) upon not less than 7 days written notice to You, to cease to provide the Services; and (ii) to charge 3% above the Bank of England base (both before and after judgement) on any sum outstanding after the due date for payment from the due date to the date of actual payment, together with all expenses, including legal fees, which Fusion Antibodies plc may incur in recovering the outstanding sums.
e) You shall make all payments due without any deduction by way of set off, counter claim, discount, abatement or otherwise.
f) Fusion Antibodies plc may set off any sums due from You for Services supplied against any sums which Fusion Antibodies plc may otherwise owe to You.
g) If a payment from You is not stated to refer to a particular invoice, Fusion Antibodies plc may appropriate such payment to any outstanding invoice addressed to You from Fusion Antibodies plc.
4. Provision of the Services – obligations of Fusion Antibodies plc
a) Fusion Antibodies plc warrants that in performing the Services it shall exercise all reasonable skill and care.
b) Fusion Antibodies plc will use reasonable endeavours, but cannot guarantee, to provide the Services within any estimated timescales set out in the Quotation. Time shall not be of the essence in respect of the provision of the Services and Fusion Antibodies plc shall not be liable for any delay in meeting the said timescales.
c) Fusion Antibodies plc shall use any materials provided by You only in connection with the provision of the Services and any excess materials shall be destroyed one month after completion of the Services for non-perishable goods and ten days after completion of the Services for perishable goods unless specific instructions to the contrary are received from You in writing at the time of delivery of the materials, in which case, Fusion Antibodies plc will at the end of the relevant period stated above either (at Your option) return the materials to You by courier (at Your expense) or store the materials for a further agreed period at Fusion Antibodies plc’s standard storage rates (available upon request).
d) Fusion Antibodies plc may, in the performance of the Services, make statements about or recommendations of third party equipment or services. No warranty shall be attributable to Fusion Antibodies plc in respect of such statements, equipment or services.
5. Provision of the Services – Your obligations
a) You warrant that any information provided to Fusion Antibodies plc pursuant to a Contract is complete, accurate and not misleading. You acknowledge that, in performing its obligations under the Contract, Fusion Antibodies plc will be relying upon information supplied directly or indirectly by You.
b) You warrant that You have obtained, or will obtain, all consents, approvals, licenses and authorisations, required under applicable law or required by competent regulatory and governmental authorities, necessary for the performance or receipt of the Services.
c) You shall provide all relevant safety data relating to hazardous samples and shall ensure that hazardous samples are supplied to Fusion Antibodies plc in appropriate packaging and that these packages and the samples contained therein are identified with the appropriate safety labelling including, in particular, appropriate safety labelling on the outer packaging. You shall comply with all relevant legislation in relation to hazardous samples. You agree to fully indemnify and keep indemnified Fusion Antibodies plc against all losses, claims, liabilities, damages, costs (including legal costs) and expenses incurred by Fusion Antibodies plc as a result of any failure on Your part to attach appropriate safety labelling to any hazardous samples or to comply with the relevant legislation.
d) You further acknowledge that the evaluation, use and application of the results of Services provided by Fusion Antibodies plc are in Your sole discretion and that You shall be solely responsible for such evaluation, use or application and the consequences thereof. Fusion Antibodies plc does not guarantee the results of ant such services, including the deliverables, that using such deliverables requires specialist skill and knowledge and the Client agrees that it has the same, and that Fusion provides the deliverables solely for the client’s internal research and development purposes.
e) Reverse Engineering: The client shall not attempt to reverse engineer, deconstruct, or in any way determine the structure or composition of any of the Deliverables provided by Fusion so as to determine any method or process used by Fusion to produce the Deliverables (including those methods and processes comprised within the Background IP), including with a view to selling, transferring, replicating, reproducing, disclosing or otherwise providing or gaining access to such methods or processes, without the prior written consent of Fusion..
f) You shall co-operate with Fusion Antibodies plc by promptly responding to requests for such further information or materials in Your possession as Fusion Antibodies plc may reasonably require to enable it to perform the Services.
g) You shall deliver any sequences, samples and/or materials to the address stated in the Quotation or otherwise to any other address communicated by Fusion Antibodies plc. You acknowledge and agree that Fusion Antibodies plc shall bear no responsibility in relation to any breach or delay that arises out of or is contributed to by delivery to an address other than the one provided by Fusion Antibodies plc.
6 Data, Intellectual Property Rights and Confidentiality
a) Each of Fusion Antibodies plc and Client shall retain ownership of all their Background IP and nothing in these Terms and Conditions shall affect such ownership.
b) Client hereby grants to Fusion Antibodies plc a royalty-free non-exclusive license to use Client’s Background IP as necessary to enable Fusion Antibodies plc to perform the Services under that Contract.
c) All Foreground IP, included in the Reports, which (i) relates exclusively to the Deliverables; or (ii) incorporates and relies on Client’s Confidential Information shall vest in Client. All other Foreground IP, including without limitation any rights in any methodologies, and know how generated or adapted in or for such performance of the Services, shall vest in and belong to Fusion Antibodies plc. and upon creation and is hereby assigned to Client, by way of assignment of future copyright as of the date upon which Client shall have paid in cleared funds all Charges and Expenses relating to the Services performed under the Contract in question.
d) All Foreground IP, excluded in the Reports, which (i) relates exclusively to the Deliverables; or (ii) incorporates and relies on Client’s Confidential Information shall vest in Client. All other Foreground IP, including without limitation any rights in any methodologies, and know how generated or adapted in or for such performance of the Services, shall vest in and belong to Fusion Antibodies plc.
e) Each party shall do all such things and execute such documents as shall be necessary to ensure that ownership of all Foreground IP is vested in the relevant party in accordance with Conditions 6c) and d) above, and will be to an additional quotation and payment of the charges associated to any work carried out by Fusion Antibodies
f) Fusion Antibodies plc shall keep confidential and shall not, without prior written consent from Client, disclose to any person any Confidential Information acquired from Client in connection with the Services or that Client is a client of Fusion Antibodies plc. Fusion Antibodies plc shall be entitled to disclose such information on a strictly need to know basis to employees of Fusion Antibodies plc or other members of the Fusion Antibodies plc group of companies, sub-contractors and/or other agents involved in providing the Services and to its professional advisors provided any such third party is subject to the same duty of confidentiality as contained herein.
g) You shall keep confidential and shall not without Fusion Antibodies plc’s prior written consent, disclose to any person (save to Your employees, sub-contractors or professional advisors who have a need to know) any Confidential Information acquired from Fusion Antibodies plc in connection with the Services, including but not limited to any of the Foreground IP owned by Fusion Antibodies plc (as stated in Condition 6d) and the fact of Fusion Antibodies plc’s engagement to provide Services to You.
h) The obligations of confidentiality imposed under this Condition 6 will not apply to information:-
(i) which was already in the public domain at the time of disclosure or subsequently comes into the public domain otherwise than through a breach of the obligations hereunder; or
(ii) which was legally in the possession of the receiving party prior to the disclosure by the disclosing party; or
(iii) which the receiving party can demonstrate by written records was independently developed by the receiving party without reference to the disclosing party’s information; or
(iv) where disclosure is required by law or regulations or by a binding order of a court or regulatory body.
i) Publicity: Either Party shall not disclose the pricing contained herein to any third party. Fusion Antibodies plc shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of Client.
j) GDPR: Information will be held and used in accordance with the General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018. The following definitions shall apply:
(i) ‘client personal data’ means any personal data provided to us by you, or on your behalf, for the purpose of providing our services to you, pursuant to our engagement letter with you;
(ii) ‘data protection legislation’ means all applicable privacy and data protection legislation and regulations including PECR, the UK GDPR and any other applicable national laws, regulations and secondary legislation in the UK relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time;
(iii) ‘controller’, ‘data subject’, ‘personal data’, and ‘process’ shall have the meanings given to them in the data protection legislation;
(iv) ‘UK GDPR’ means the Data Protection Act 2018 as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 which merge the previous requirements of the Data Protection Act with the requirements of the General Data Protection Regulation ((EU) 2016/679); and
(v) ‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
7. Liability: Your attention is in particular drawn to the provisions of this Condition 7
a) The warranty set out in Condition 4a) is the only warranty given by Fusion Antibodies plc in relation to the Services and shall apply to the exclusion of all other warranties conditions and other terms implied by statute or common law to the fullest extent permitted by law.
b) If the Services do not conform to the above warranty, then Fusion Antibodies plc may at its option (and in full discharge of its liability under the warranty) either
(i) rectify the defect or re-perform the defective Services free of charge; or
(ii) if in Fusion Antibodies plc’s reasonable opinion rectification or re-performance are not possible, refund to You (or issue a credit note in respect of) any amount of Charges already paid by You under that Contract, provided that You give written notice of any alleged defect to Fusion Antibodies plc within 14 days of completion of the Services.
c) Without prejudice to Condition 7b) Fusion Antibodies plc’s total liability in contract, tort (including without limitation for negligence or for breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of each Contract shall be limited to an amount equal to : (a) 100% of the Charges paid or payable by You for the Services supplied prior to the date the cause of action arose; or (b) £50,000 (fifty thousand pounds sterling), whichever is the lesser of the two.
d) Fusion Antibodies plc shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: for any loss of profits; or loss of business; or depletion of goodwill or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; whatsoever and howsoever arising.
e) Nothing in these Terms and Conditions shall operate to exclude or limit Fusion Antibodies plc’s liability for (i) death or personal injury arising out of the negligence of Fusion Antibodies plc;(ii) fraudulent misrepresentation; or (c) any other liability which cannot be excluded or limited under relevant law.
f) Fusion Antibodies plc shall have no liability for any inaccuracies in a Report prepared in performance of the Services which are attributable to incorrect information provided by You.
g) You agree to fully indemnify and keep indemnified Fusion Antibodies plc in respect of any claim brought against Fusion Antibodies plc by any third party arising out of the evaluation, use or application of the results of the Services or any Report, save to the extent that any loss or damage claimed by the third party was caused by Fusion Antibodies plc’s negligence and was in the reasonable contemplation of the parties at the time the Contract was entered into.
h) Any Report prepared by Fusion Antibodies plc is intended for Your use only and Fusion Antibodies plc shall have no liability in respect of any reliance placed on such Report by a third party. Any recommendations contained in a Report are made in good faith based on information available at the time and are not a representation as to outcome or achievable results.
8. Termination of a Contract
(i) You enter into a voluntary arrangement with Your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation (otherwise than for the purpose of amalgamation or re-construction) or a receiver is appointed in respect of any of Your property or assets or You cease or threaten to cease to carry on business; or
(ii) Fusion Antibodies plc reasonably apprehends that any of the events mentioned in (i) is about to happen and notifies You; or
(iii) You fail to remedy a material breach of Contract by You within 14 days of receiving notice to do so, then without prejudice to any other right or remedy available to it, Fusion Antibodies plc shall be entitled to terminate the Contract immediately and/or suspend any further performance of Services under the Contract without any liability to You.
b) You may terminate a Contract if Fusion Antibodies plc fails to remedy a material breach of Contract by it within 14 days of receiving notification from You to do so.
c) Termination of the Contract shall not relieve the parties of any obligation accruing prior to such termination. In the event of any termination of this Contract, all Charges, Expenses, and any other sums related to this contract will be payable by You shall be invoiced and together with unpaid invoices, shall become immediately due and payable.
(d) Notices of termination shall only be valid if made in writing.
a) You shall not be entitled to assign or otherwise transfer any rights or obligations under a Contract or any part of it without the prior consent in writing of Fusion Antibodies plc.
b) No person who is not a party to a Contract shall have the right, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce any term of a Contract which expressly or by implication confers a benefit on that person.
c) Nothing in a Contract shall be deemed to create any joint venture, partnership or relationship of principal and agent between the parties.
d) The waiver by either party of any breach of a Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
e) The invalidity or unenforceability of any provisions of a Contract shall not invalidate or render unenforceable the remainder of the Contract.
f) Each Contract shall be governed by Northern Ireland law and any disputes in relation thereto shall be subject to the exclusive jurisdiction of the Northern Ireland courts.
g) You shall not either during or for a period of 12 months following completion of a Contract, solicit, entice away or offer employment to any employee of Fusion Antibodies plc directly involved in the performance of the Services.
h) Fusion Antibodies plc shall not be liable in respect of any failure to perform or delay in performing its obligations under a Contract if the failure or delay is due to causes or circumstances outside its reasonable control.
i) All notices to be served pursuant to a Contract must be served in writing on the relevant party at its business address stated on its letterhead by registered first class post or by hand, or otherwise by email to an email address notified by each party.
j) Unless otherwise stated in these Terms and Conditions, no amendment or variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
k) No Partnership: Nothing in the Agreement shall create, or be deemed to create, a partnership, joint venture, or the relationship of principal and agent or employer and employee between the parties. Each party agrees to perform under the Agreement solely as independent contractor.
l) Force Majeure: Neither party shall be liable to the other party for any delay or failure to perform its obligations under the Agreement to the extent and for so long as such delay or failure results from circumstances beyond its reasonable control (Event of Force Majeure) provided that it notifies the other party within 5 days of becoming aware of such event. If any Event of Force Majeure continues for a period exceeding 3 months, either party shall have a right to terminate the Agreement on 30 days’ written notice to the other party.
m) Dispute Resolution: In the event of any dispute arising between the parties in connection with the Agreement (other than a dispute to be referred to an Expert pursuant to clause 11), either party may submit the dispute to the parties’ Chief Executive Officers who shall meet in order to attempt to resolve the dispute. If the dispute is not settled, at the latest, within thirty (30) days from the date that the dispute has been escalated to the Chief Executive Officers, either party may pursue legal action pursuant to clause 12.13 below.
n) Language: The Agreement and any disputes or correspondence regarding it or its subject matter shall be expressed in the English language only