A) TERMS AND CONDITIONS - GENERAL
1. Terms and Conditions. For certainty: (a) these Terms and Conditions (including, for certainty, Part A and Part B hereof), apply to, and are incorporated by reference into, all services agreements entered into by BioCache Lab Solutions Inc. (“BioCache”) and a customer (referred to as the “Service Recipient” therein); (b) these Terms and Conditions, together with the Body of the Agreement and the Schedules, constitute the “Agreement” for the purposes hereof and thereof; and (c) all capitalized terms used in these Terms and Conditions but not otherwise defined shall have the respective meanings given to them in the Body of the Agreement or the Schedules. These Terms and Conditions shall be read together with the other parts of the Agreement.
2. Definitions. In addition to terms elsewhere in any part of the Agreement, the following terms shall have the following meanings:
“Affiliate” has the meaning given to it in the Business Corporations Act (Ontario).
“Applicable Law” means in respect of any Person, property, transaction or event, means all present and future laws, statutes, regulations, treaties, judgments and decrees applicable to that Person, property, transaction or event and, whether or not having the force of law, all applicable official directives, rules, consents, approvals, authorizations, guidelines, orders and policies of any governmental authority having or purporting to have authority over that Person, property, transaction or event.
“BioCache Background Intellectual Property” means: (a) all Intellectual Property (including Intellectual Property relating to any method or process for the processing of biological materials and related information) owned or licensed by BioCache as of or after the Effective Date; (b) all Intellectual Property conceived, discovered, invented, made or first reduced to practice by, or on behalf of, BioCache after the Effective Date; and (c) all improvements, variations, modifications or enhancements of the Intellectual Property described in (a) and (b) of this definition that is conceived, discovered, invented, made or first reduced to practice (as the case may be) by, or on behalf of, BioCache after the Effective Date.
“BioCache Policies” means BioCache’s operational requirements and policies, as modified from time to time, for example with respect to containers, labelling and preparation of Specimens.
“Business Day” means any day of the year, other than a Saturday, Sunday or any day which is a statutory or civic holiday observed in Toronto, Ontario.
“Confidential Information” means data or information (in any form) relating to the business or operations of any Party, that is treated as confidential by that Party or would reasonably be treated as confidential, but excludes any data or information which:
(a) becomes publicly available through no fault of the receiving Party;
(b) is documented to be in the possession of the receiving Party prior to its receipt from the disclosing Party;
(c) is independently developed or obtained from a third party by the receiving Party; or
(d) is Service Recipient PHI which shall, for certainty, be governed by Section 7(b) of the Body of the Agreement and section 6 of these Terms and Conditions.
“Facilities” means the facilities in the Province of Ontario from which BioCache provides one or more of the Services from time to time.
“including” means including, without limitation.
“Key Contacts” means the individuals designated on the first page of the Body of the Agreement to whom notices to the Parties should be sent to the attention of.
“Person” includes if the context allows, an individual, company, corporation, limited liability company, limited liability partnership, partnership, unincorporated association, government or government agency, authority or entity however designated or constituted.
“Representatives” means, in respect of any Party, its directors, officers, employees, agents and (sub)contractors.
“Sales Taxes” means value-added, sales, use, consumption, multi-staged, personal property, customs, excise, stamp, transfer, or similar taxes, duties, or charges.
“Shipping Agent” means the Person responsible for the transportation of Specimens, as selected by the Party responsible for arranging shipping of such Specimens (and, for certainty, may be a qualified Representative of such Party).
“Shipping Insurance” means insurance obtained in respect of Specimens shipped via a Shipping Agent, the scope and nature of which shall be: (a) commensurate with the content of the package being shipped (as determined by reference to industry standards); and (b) in accordance with any requirements: (i) of Applicable Law; and/or (ii) expressed by the Service Recipient via an Intake Form or Retrieval Form (where Shipping Services are being provided in respect of the Specimens being shipped).
“Tax Authority” means the Canada Revenue Agency or any other taxing authority or any court of competent jurisdiction.
3. Notice. Unless otherwise expressly stated in the Agreement, any notice delivered by one Party to the other Party shall be provided by: (a) personal delivery, courier service, registered mail (postage prepaid); or (b) email transmission. to the other Party’s address and/or email address (respectively) indicated on the first page of the Body of the Agreement. Such notices, requests, demands or other communications shall be deemed to have been received when delivered, or, if mailed, on the fourth Business Day after the mailing thereof, or, if sent by email transmission, on the first Business Day after confirmed transmission to the address indicated below. If a notice, request, demand or other communication is delivered by registered mail, and regular mail service shall be interrupted by strikes or other irregularities on or before the third Business Day after the mailing thereof, such notice, request, demand or other communication shall be deemed to have been received only upon personal delivery thereof. Any Party may change its address for notices upon giving seven days’ notice of the change to the other Party in the manner provided above.
4. BioCache Policies. The Service Recipient shall comply with BioCache Policies during the Term. The BioCache Policies shall be made available to the Service Recipient upon request.
5. Confidential Information
(a) Each of the Parties agree that all Confidential Information that it receives (whether directly or indirectly) from the other Party pursuant to or in connection with the Agreement shall be:
(i) kept confidential;
(ii) only used for the purposes of fulfilling its rights and obligations under the Agreement; and
(iii) disclosed to the recipient Party’s Representatives on a “need to know” basis only and only where such Person has agreed, in writing, to be bound by confidentiality obligations (in respect of such Confidential Information) at least as onerous as those set forth in this section 5.
(b) Nothing herein shall affect a receiving Party’s ability to disclose Confidential Information where such Party is required to do so by Applicable Law, but prior to disclosing the Confidential Information in such circumstance, that Party shall (to the extent permitted by Applicable Law):
(i) notify the other Party of; and
(ii) provide that Party an opportunity to contest,
the required disclosure.
(c) Upon termination of the Agreement, each Party shall either destroy or return (at the other Party’s request) any of the other Party’s Confidential Information except for copies of such Confidential Information stored in routine computer back-up systems which information shall remain subject to the terms of the Agreement, including restrictions on disclosure of and access to Confidential Information.
6. Personal Health Information. To the extent practical, the Service Recipient shall remove personal health information from Specimens (and from any packaging or labeling containing such Specimens) prior to shipment to BioCache. If BioCache receives personal health information from the Service Recipient in the course of providing the Services (“Service Recipient PHI”), then:
(a) the Service Recipient shall be the “health information custodian” (as defined in PHIPA) and the BioCache shall be the “agent” (as defined in PHIPA) in respect thereof; and
(b) each of Parties agrees to comply with the requirements of PHIPA, including those requirements that are specific to such Party on account of its role as a health information custodian (Service Recipient) or agent (BioCache) in respect of Service Recipient PHI. without limiting the foregoing, BioCache agrees to comply with terms set forth under “Information Practices” below.
7. Sales Taxes, Invoicing and Interest
(a) Unless expressly specified, neither the Fees nor any other amounts payable pursuant to the Agreement include any Sales Taxes. If BioCache is required by Applicable Law or by the administration thereof to collect any applicable Sales Taxes from the Service Recipient, the Service Recipient shall pay such Sales Taxes to BioCache concurrent with the payment of the charges to which the Sales Tax apply, unless the Service Recipient qualifies for an exemption from any such applicable Sales Taxes (in which case, in lieu of payment of the applicable Sales Taxes to BioCache, the Service Recipient shall deliver to BioCache such documentation required by Applicable Law or the administration thereof to substantiate and effect the exemption claimed by the Service Recipient (“Exemption Documentation”).
(b) During the Term, BioCache shall provide the Service Recipient with monthly invoices (in the case of Services billed monthly) and annual invoices (in respect of Services billed annually) setting forth the Fees payable by the Service Recipient for the period to which the invoice relates. Upon its receipt of an invoice, the Service Recipient shall:
(i) notify BioCache of any error in the invoice within fifteen days of its receipt of same; and
(ii) pay the invoice in full (except for any amount disputed by the Service Recipient in good faith, “Disputed Charge”) no later than 30 days after its receipt of such invoice. The Service Recipient shall provide notice to BioCache of any amount that is being withheld from its payment of an invoice on account of it being a Disputed Charge, and the reasons for doing so.
(c) In the event that the Parties are unable to resolve their differences over any Disputed Charge, they shall have recourse to the dispute resolution procedures set out in these Terms and Conditions.
(d) Amounts unpaid and due under the Agreement will bear interest at an annual rate equal to the Prime Rate plus 1.5% commencing on the date such payment was due, calculated, accruing and payable monthly. For the purposes hereof, the term “Prime Rate” means the rate per annum, commonly known as the “prime rate” announced by Canadian Imperial Bank of Commerce from time to time, being its reference rate then in effect for determining interest rates on Canadian dollar commercial loans made in Toronto.
8. Termination & Termination Related Obligations
(a) If at any time or from time during the Term, either Party defaults on any material obligation imposed on it or is in breach of any term, condition or provision of the Agreement and fails to cure such default or breach within 30 days of its receipt of written notice thereof from the other Party, the other Party may immediately terminate the Agreement on notice effective immediately and the Party in default shall not have recourse against the non-defaulting Party for any costs, liabilities or obligations arising as a result of such termination. Notwithstanding the foregoing, in the event that BioCache becomes aware that any of the Service Recipient’s material representations or warranties in respect of any Specimen(s) are inaccurate or untrue, BioCache shall be entitled to terminate the Agreement immediately on notice to the Service Recipient and the cure period referenced in this section 8(a) shall not apply. A Party may also terminate the Agreement in any manner permitted by a provision of the Body of the Agreement or a Schedule.
(b) The Service Recipient shall provide BioCache with a Retrieval Form at least 20 days prior to the expiration or termination of the Agreement or as soon as possible if the Agreement is terminated under section 8(a).
9. Additional Representations, Warranties and Covenants
(a) In executing the Agreement, each Party represents, warrants and covenants (as applicable) to the other Party as follows:
(i) it has full power and legal right to enter into the Agreement and to fulfill its obligations under the Agreement;
(ii) neither its execution and delivery of the Agreement, nor its performance of its obligations under the Agreement, do or will during the Term: conflict with, result in a breach of, or constitute a default under, any provision of its constating documents, any Applicable Law, any decree of any court, arbitrator or governmental agency, or any contract, agreement or instrument to which it is a party or subject to, or by which its property is bound or affected; and
(iii) no authorization, approval or consent of any Person is required, but has not yet been obtained, in connection with its execution and delivery of the Agreement and the performance of its obligations hereunder (and in the case of the Service Recipient and for greater certainty, including any authorization, approval or consent of any Person required under any: (i) Applicable Law that governs or otherwise restricts the collection, use or disclosure of personal health information; or (ii) policy, procedure, or process to which the Service Recipient is bound).
(b) Each of the Parties is deemed to provide the same representations, warranties and covenants contained in the Agreement to the other Party each time it obtains or delivers, respectively, a Service (except to the extent that any such representation, warranty or covenant does not apply to the Service).
(c) The Service Recipient covenants that none of the Specimens are: (i) dangerous or otherwise unsafe to store at any of the Facilities; and (ii) subject to any restrictions imposed by Applicable Law, unless such restrictions are expressly indicated by the Service Recipient to BioCache via an Intake Form or Retrieval Form.
(d) The representations, warranties and covenants contained in these Terms and Conditions are in addition to and not in substitute of any representations, warranties and covenants of either Party set forth in the other parts of the Agreement.
10. Independent Contractor & Contracts. The Parties are independent contractors. Nothing herein shall be deemed to establish a partnership, agency, joint venture, association or employment relationship between them. In performing its obligations under the Agreement, each Party shall be entitled to reasonably rely on any routine instruction, authorization, approvals or other information given by the individual designated by the other Party as its Key Contact.
11. Dispute Resolution Process. If the Key Contacts are unable to resolve a dispute arising under or in connection with the Agreement within fifteen days of each Party having knowledge of the dispute, such dispute shall be referred to a senior executive of each Party who shall meet as promptly and as often as possible to discuss and negotiate (in good faith) a resolution.
12. Force Majeure Events. BioCache shall be entitled to reasonable delay in the performance of the Services due to causes beyond the its reasonable control which directly affect its business.
13. Interpretation: With respect to the Agreement:
(a) the division of the Agreement (including any part thereof) into sections, parts and schedules and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of the Agreement. Unless something in the subject matter or context is inconsistent therewith, references to “Sections” and “Schedules” are to sections and schedules of the Body of the Agreement, respectively, whereas a references to a “section” or “Part” is to a section or “Part” of the Schedule or the Terms and Conditions (as the case may be) in which the reference is found.
(b) words importing the singular number include the plural and vice versa and words in one gender shall include all genders;
(c) any references to “it” shall be deemed to refer to the gender of any Service Recipient that is an individual; and
(d) unless otherwise provided in the Agreement, each reference to an enactment is deemed to be a reference to that enactment, and to the regulations made under that enactment, as amended or re-enacted from time to time. Similarly, unless otherwise provided herein, each reference to an agreement is deemed to be a reference to that agreement, as it may be supplemented, amended or restated from time to time.
(a) The Agreement shall be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns. No Party shall assign the Agreement (in whole or in part) to any Person who is not an Affiliate without the prior written consent of the other Party (with such consent not to be unreasonably withheld).
(b) Notwithstanding the termination or expiry of the Agreement, those obligations of the Parties which expressly or by their nature survive termination or expiry shall continue in full force and effect subsequent to and notwithstanding such termination or withdrawal until they are fully satisfied or by their nature expire including all confidentiality, privacy and indemnification obligations.
(c) Each of the provisions contained in the Agreement is distinct and severable and a declaration by a court of competent jurisdiction of the invalidity or unenforceability of any provision or part of a provision will not affect the validity or enforceability of any other provision of the Agreement.
(d) This Agreement may only be amended upon the written consent of each of the Parties. Any waiver of, or consent to depart from, the requirements of any provision of the Agreement shall be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and purpose for which it has been given. No failure or delay of any Party to exercise any right under the Agreement shall operate as a waiver thereof. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right.
B. INFORMATION PRACTICES
1. Information Practices Collection, Use and Disclosure of Service Recipient PHI
(a) The Service Recipient is a health information custodian (as such term is defined under PHIPA) and has statutory obligations to safeguard PHI, including Service Recipient PHI.
(b) While BioCache may not require access to Service Recipient PHI in the course of fulfilling its obligations under the Agreement, it may nonetheless acquire Service Recipient PHI.
2. Practices to Protect Service Recipient PHI
(a) employ appropriate safeguards to prevent theft, loss, and unauthorized access, copying, modification, use, disclosure, or disposal of Service Recipient PHI. Without limiting the generality of the foregoing, BioCache will take reasonable steps to ensure that all Service Recipient PHI is securely segregated from any information owned by BioCache or third parties, as further detailed in the Service Commitments;
(b) maintain privacy policies in accordance with Applicable Law;
(c) educate its Representatives who will have access to Service Recipient PHI on Applicable Law pertaining to PHI, its privacy policies and its obligations under this Information Practices Schedule, and will take reasonable steps to ensure that its Representatives comply with such Applicable Law, privacy policies and obligations through training and confidentiality agreements;
(d) ensure that its Representatives who no longer require access to Service Recipient PHI return all such Service Recipient PHI to BioCache and can, thereafter, no longer access applications, hardware, software, network, and facilities containing Service Recipient PHI; and
(e) at the termination of the Agreement, return or destroy all Service Recipient PHI that BioCache maintains custody of in any form and will retain no copies of Service Recipient PHI thereafter. BioCache will certify to the Service Recipient that all such Service Recipient PHI has been returned or destroyed, as the case may be. If such return or destruction of PHI is not feasible, BioCache will notify the Service Recipient of this fact, extend the protections of the Agreement to all Service Recipient PHI in its custody and will cease all further uses and disclosures.
3. Notification of and Communication with the Service Recipient
(a) BioCache shall provide the Service Recipient with the name of a contact person at BioCache responsible for its privacy compliance and notify the Service Recipient of any changes in the identity of the responsible person.
(b) BioCache shall not permit the Service Recipient PHI to be transmitted to, or accessed by, any of BioCache Personnel or any facility situated outside of Canada without the prior written consent of the Service Recipient’s Privacy Officer.
(c) The Service Recipient shall provide BioCache with contact information for its Privacy Office.
(d) BioCache shall report to the Service Recipient’s Privacy Office at BioCache’s first reasonable opportunity, but in any event no more than 72 hours after BioCache becomes aware of any use, disclosure (including being legally compelled), theft, or unauthorized access of Service Recipient PHI by BioCache or any of its Representatives who obtain access to Service Recipient PHI.
(e) BioCache shall refer anyone trying to access, correct, or complain about Service Recipient PHI to the Service Recipient’s Privacy Office within 72 hours of receiving the complaint or request for access or correction.
(f) The Service Recipient reserves the right during regular business hours (being any Business Day between 9 am to 5 pm) and on the provision of 48 hours' notice to: (i) inspect the Facilities and safeguards utilized by BioCache to fulfill its obligations hereunder; and (ii) question BioCache on its compliance with its obligations hereunder.
(g) All of the privacy terms provisions in this Part B, Information Practices survive the termination of the Agreement.
(h) The Service Recipient reserves the right to go to court to obtain an order stopping or preventing BioCache from violating the privacy terms of this Part B, Information Practices.