Terms of Third Party Product and Service Sales.

THESE TERMS OF THIRD PARTY PRODUCT AND SERVICE SALES (“TERMS” OR THIS “AGREEMENT”) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU (“CUSTOMER”) AND COMPUGEN INC. (“COMPUGEN”). BY MAKING A PURCHASE OF, PLACING AN ORDER FOR OR OTHERWISE ENGAGING COMPUGEN TO PROVIDE THIRD PARTY PRODUCTS AND SERVICES (AS HEREIN DEFINED), CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CUSTOMER AND COMPUGEN HAVE SIGNED A SEPARATE PURCHASE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.

 

THESE TERMS ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE AND THE TERMS EFFECTIVE AT THE TIME OF PLACING AN ORDER SHALL BE APPLICABLE.

Third Party Products and Services

“Third Party Products and Services” as used herein, refers to goods and services that Compugen resells from Third Party Providers, including but not limited to hardware, software, subscription services, updates, bug fixes, maintenance services, support services, warranty services and professional services that Customers may order. “Third Party Providers” are entities for which Compugen acts as a reseller or sales agent, including but are not limited to, manufacturers, distributors, licensors or providers of goods and services. In purchasing Third Party Products and Services, Customer is relying on the Third Party Provider’s specifications only and is not relying on any statements or documents that may be provided by Compugen. Customer acknowledges and agrees that: (i) the Third Party Products and Services purchased by Customer are resold by Compugen for Customer’s use only; and (ii) Compugen is not the creator, manufacturer, distributor or licensor of the Third Party Products and Services. Customer hereby releases Compugen from any and all claims arising from or relating to the purchase or provision of any such Third Party Products and Services.

 

In the event that customer requests or places an order for services to be performed by or on behalf of Compugen (“Compugen Services”), the terms applicable to the provision of such Compugen Services shall be those set out in the document entitled “Terms for the Supply of Services” as published from time to time on Compugen’s website: https://engage.compugen.com/service-terms. The purchase of Compugen Services may be combined with a purchase of Third Party Products and Services from Compugen on the same Order Form. Where such Third Party Products and Services are included on the same Order Form as Compugen Services, these Terms shall apply to the Third Party Products and Services and the Terms for the Supply of Services shall apply to the Compugen Services.

Administrative Matters

Orders for Third Party Products and Services may be placed via Compugen’s website, a purchase order, or other oral or written request (collectively, “Order Forms”). All orders are subject to Third Party Product and Service availability. Orders placed by Customer are not binding until the parties have agreed to Compugen’s quote for Third Party Products and Services in writing or such request is accepted in writing by Compugen (collectively, “Acceptance”). Order delivery times are estimates only and Compugen is not liable for any delays that are beyond its control.

 

Terms set forth in an Order Form other than those required to identify the Customer, the Third Party Products and Services and the quantity ordered contained in any such Order Form will be null and void. This Agreement contains the entire understanding of the parties with respect to the terms in respect of Third Party Products and Services and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof. Fulfillment of an Order Form does not constitute acceptance of any Customer’s terms and conditions and does not serve to modify these Terms.

 

Customer consents to receiving electronic records or other communications related to its transactions with Compugen, which may be provided via a Web browser or e-mail application. Customers may withdraw consent to receiving electronic records or communications, or have the record provided in non-electronic form, by contacting Compugen at https://engage.compugen.com/subscribe.

Shipment; Title; Risk of Loss

Compugen will use reasonable efforts to deliver Third Party Products and Services within a reasonable time after Acceptance. Compugen may, at its discretion, make partial deliveries or shipments of Third Party Products and Services to Customer.

 

Compugen will not be liable for any non-delivery of Third Party Products and Services unless Customer gives written notice to Compugen within 5 days of the date when the Third Party Products or Services would in the ordinary course of events have been received. Any liability of Compugen for non-delivery of the Third Party Products or Services will be limited to replacing the Third Party Products or Services within a reasonable time or adjusting the invoice respecting such Third Party Products or Services to reflect the actual quantity delivered, in Compugen’s sole discretion.

 

Unless otherwise agreed to in writing, Compugen will deliver Third Party Products and Services to the Customer at the address set out in the Order Form. For all shipments made with a carrier that regularly ships for Compugen, title to Third Party Products and Services and risk of loss or damage to any Third Party Products and Services during shipment pass from Compugen to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). If Customer provides Compugen with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for Compugen, title to third Party Products and Services and risk of loss or damage to any tangible Third Party Products and Services during shipment pass from Compugen to Customer upon delivery to the carrier (F.O.B. Origin, freight collect).

 

Notwithstanding the foregoing, ownership of all intellectual property rights within the Third Party Products and Services remain with the applicable licensor(s), and Customer's rights therein are contained in the license agreement or subscription agreement between such licensor(s) or software publisher(s) and Customer. Customer acknowledges and agrees that Compugen does not grant to Customer any rights in Third Party Products and Services which Compugen does not own or have the right to grant to Customer

Customer Responsibilities 

Customer agrees to cooperate with Compugen in connection with the performance of this Agreement by providing: (i) timely responses to Compugen's inquiries, (ii) access to any descriptions, specifications, data, information or materials reasonably requested by Compugen which are necessary or useful as determined by Compugen in connection with providing the Third Party Products and Services (“Customer Information”), (iii) cooperation, technical assistance, resources and support reasonably requested to enable Compugen to exercise its rights and perform its obligations under and in connection with this Agreement, and (iv) all Required Consents necessary for Compugen to provide the Third Party Products and Services (collectively, “Customer Responsibilities”). "Required Consents" means consents or approvals required for Compugen or Third Party Providers to perform their obligations herein. Compugen shall be entitled to rely upon the decisions, approvals, consents, assistance, and completeness and accuracy of information provided by Customer or its employees, agents or subcontractors (“Personnel”) and the knowledge and cooperation of the Customer’s Personnel engaged or appointed by Customer who are selected by Customer to work with Compugen. Customer understands that Compugen’s performance of its obligations hereunder is dependent on Customer’s (or its Personnel’s) timely and complete performance of the Customer Responsibilities. Compugen is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s (or its Personnel’s) delay in performing, or failure to perform, any of the Customer Responsibilities. If Customer (or its Personnel) fails to fulfill any of the Customer Responsibilities for any reason (including without limitation, changes, errors or omissions in Customer Information), which delays provision of the Third Party Products or Services or results in additional costs, then Compugen may act as it deems prudent to mitigate such effects. In the event that Customer (or its Personnel) fail to perform or are delayed in performing the Customer Responsibilities, Customer agrees to pay Compugen its reasonable additional costs resulting from such failure or delay.

 

Customer represents and warrants that it owns all right title and interest, or possesses sufficient licence rights, in and to the Customer Information as may be necessary to authorize the use thereof by Compugen contemplated by this Agreement. Customer hereby grants to Compugen all such rights and permissions in or relating to the Customer Information as are necessary or useful to Compugen to enforce this Agreement and exercise Compugen’s rights and perform Compugen’s obligations hereunder.

 

Customer has and will retain sole responsibility for: (a) Customer Information, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Third Party Products and Services; (c) Customer’s systems; (d) the security and use of access credentials of Customer or Customer Personnel; and (e) all access to and use of the Third Party Products and Services directly or indirectly by or through the Customer system or its access credentials, with or without Customer’s knowledge or consent.

 

Customer will indemnify, defend and hold harmless Compugen from and against any and all losses incurred by Compugen or any action, demand or claim by a third party that arises out of or relates to any Customer Information, any other materials or information provided by or on behalf of Customer, including Compugen’s compliance with any specifications or directions provided by or on behalf of Customer, errors, negligent acts or omissions by Customer or its Personnel in connection with this Agreement

Payment and Pricing

Customer agrees to pay the total purchase price or fees for the Third Party Products and Services plus shipping and other costs identified on the invoice delivered to the Customer by Compugen. Customer will pay any applicable sales, use, goods and services, transaction, excise or similar taxes and any federal, provincial, local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with all of the Third Party Products and Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Compugen with the necessary supporting documentation.

 

Terms of payment are within Compugen's sole discretion. Customer will pay for the Third Party Products and Services as invoiced by Compugen. Invoices are due and payable within the time period specified on the invoice unless otherwise specified in writing by agreement between Customer and Compugen in advance. All references to money amounts are to lawful currency of Canada, unless otherwise stipulated in the invoice.

 

Customer agrees to pay interest on all past-due sums at one and one-half percent (1.5%) per month, (18% per annum) calculated monthly. In the event of overdue payments, Compugen may immediately suspend or terminate the provision of Third Party Products and Services (including subscriptions) upon notice to the Customer. In the event of a payment default, Customer will be responsible for all of Compugen’s costs of collection, including, but not limited to, lawyers' fees.

Export Sales

Customer agrees that it will not, directly or indirectly, divert, release, use, make accessible, export or re-export any Third Party Products and Services contrary to any federal, state or provincial laws or regulations in Canada or the United States without first obtaining all required undertakings (including obtaining any necessary export license or other governmental approval).

Warranties

If applicable and permitted by the Third Party Provider, Compugen will pass through to Customer any warranties provided to Compugen by the Third Party Provider for a Third Party Product or Service. This limited obligation to pass through warranties provided by the Third Party Provider to Customer is Customer’s sole remedy and Compugen's sole obligation in connection with representations, warranties and conditions related to Third Party Products and Services. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPUGEN MAKES NO WARRANTIES OR REPRESENTATIONS IN CONNECTION WITH THE THIRD PARTY PRODUCTS AND SERVICES WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES HEREBY EXPRESSLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND ANY LOCAL IMPLEMENTING LEGISLATION RELATED THERETO.

Limitation of Liability

COMPUGEN’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST OR EXPENSE SUFFERED OR INCURRED BY CUSTOMER ARISING OUT OF OR IN CONNECTION WITH DELIVERY OF THIRD PARTY PRODUCTS AND SERVICES, COMPUGEN’S SUPPLY OF THIRD PARTY PRODUCTS AND SERVICES OR THIS AGREEMENT IS HEREBY LIMITED TO THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE THIRD PARTY PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM; OR (B) TEN-THOUSAND ($10,000.00) CANADIAN DOLLARS.

 

COMPUGEN SHALL NOT BE LIABLE TO CUSTOMER FOR ANYTHING BEYOND THE DELIVERY OF THIRD PARTY PRODUCTS AND SERVICES. IN NO EVENT SHALL COMPUGEN BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO: (I) LOSSES OF REVENUE, INCOME, PROFIT OR SAVINGS; (II) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORK(S, OR THE RECOVERY OF SUCH; (III) LOSS OF BUSINESS OPPORTUNITY; (IV) BUSINESS INTERRUPTION OR DOWNTIME; (V) CYBERSECURITY BREACHES (VI) LOSS OF GOODWILL OR REPUTATION; OR (VII) THIRD PARTY PRODUCTS AND SERVICES NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE THIRD PARTY PRODUCTS AND SERVICES OR OTHER GOODS.

 

The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the alleged or actual damages were foreseeable or whether a claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Such limitations will apply notwithstanding the failure of the essential purpose of this Agreement or any remedy contained herein and even if a party has been advised of the possibility of any such failure or liability.

Return Privilege

Approvals for unused, unopened returns are subject to manufacturer return policies and guidelines, and Compugen’s ability to return Third Party Products and Services to the Third Party Providers. Such Third Party Products or Services must be complete and in manufacturer’s original packaging, with no visible damage. Compugen will not be required to accept any return of Third Party Products or Services without an approved return merchandise authorization (“RMA”) number, which may be obtained by contacting RMARequests@compugen.com. An RMA number is valid for five (5) days from Compugen issuance date unless other arrangements are made between the Customer and Compugen at the time of Compugen’s RMA approval. The RMA number is to be clearly noted on a shipping label affixed to the outer shipping box and any items received into a Compugen return facility without an RMA number or after the elapsed time period will be sent back to the Customer at the Customer’s expense. Except in the event of a Compugen or Third Party Provider error, Customer will be responsible for shipping charges associated with any Third Party Products or Services being shipped for return, exchange or replacement. Third Party Products and Services exchanged or replaced will be shipped back to Customer, at Customer’s expense. At Compugen’s discretion, restocking fees may be charged for items which do not qualify for return. Some manufacturers require that defective or Dead on Arrival (“DOA”) Third Party Products and Services be returned directly to them, or they may limit the timeframe in which Third Party Products and Services can be returned; therefore, Third Party Products and Services that are inoperable at initial use may be eligible for DOA return to or replacement by the manufacturer, subject to the manufacturer’s product defective/DOA return policies. If the Third Party Product or Service is not returnable under manufacturer guidelines, Compugen may reasonably attempt to repair or replace the Third Party Product or Service through the manufacturer’s warranty.

Termination

Either party may terminate this Agreement for cause if the other party fails to cure a material default within 30 days after receiving written notice of such breach from the non-breaching party, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach if it has used its reasonable efforts to start to cure the default. Notwithstanding the foregoing, Compugen may terminate this Agreement immediately upon providing notice in the case of non-payment. Either party may terminate this Agreement immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 30 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. In the event of any termination of this Agreement, Customer will pay Compugen for all expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable invoice. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate in respect of the Third Party Products and Services except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing and this survival provision).

Confidential Information

Each party (the “Disclosing Party”) anticipates that it may be necessary to provide access to Confidential Information (defined below) belonging to the Disclosing Party, its affiliates or third parties to the other party (the “Receiving Party”) in the performance of this Agreement.

 

"Confidential Information" means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information that are disclosed by or on behalf of a party in relation to this Agreement (including all copies, analyses and derivatives thereof) and which are marked or otherwise identified as proprietary or confidential at the time of disclosure. Confidential Information does not include information which: (a) becomes known to the public through no act of the Receiving Party; (b) was already known to the Receiving Party without an obligation of confidentiality; (c) becomes known to the Receiving Party from a third party having the right to disclose it and having no obligation of confidentiality to the Disclosing Party with respect to the applicable information; (d) is independently developed by agents, employees or subcontractors of the Receiving Party who have not had access to such information; (e) is disclosed by the owner to a third party without similar restrictions; or (f) is approved by the Disclosing Party for disclosure. Without limiting the generality of the forgoing, the existence of this Agreement, and any Order Forms or invoices are Compugen’s Confidential Information. Receiving Party agrees to hold the Disclosing Party’s Confidential Information confidential for a period of two (2) years following the date of disclosure. Receiving Party shall take the same measures to prevent disclosure of Disclosing Party’s Confidential Information as Receiving Party takes to protect its own Confidential Information of like kind but to use no less than a commercially reasonable degree of care. Disclosures of the Disclosing Party's Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement who have a need to know such Confidential Information for the purposes of providing or receiving the Third Party Products and Services or otherwise in connection with this Agreement, or (ii) to its business, legal and financial advisors, provided such individuals are bound by confidentiality obligations at least as restrictive as those set out herein. Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose other than the business purposes contemplated by this Agreement and the applicable Order Form. Upon the written request of a Disclosing Party, the Receiving Party will either return or certify the destruction of the Confidential Information of the Disclosing Party. Notwithstanding the foregoing, Compugen may retain, subject to the terms of this Agreement, copies of Customer’s Confidential Information contained in any materials produced by Compugen as a result of the performance of this Agreement for its quality assurance and record-keeping purposes, and archived copies of Customer’s Confidential Information contained in Compugen’s backups until they are destroyed in the ordinary course in accordance with Compugen’s standard practices.

Arbitration

Any claim, dispute, or controversy arising from or relating to these Terms or the supply of Third Party Products and Services (collectively, a “Dispute”) shall initially be referred to the executive management of Compugen and the Customer, who shall attempt to resolve the Dispute in good faith without recourse to legal proceedings. If Compugen and Customer are unable to resolve the Dispute within 10 business days (or such other period as mutually agreed by the parties hereto) from the date the Dispute is referred to them, either party may choose to pursue arbitration. Failing mutual agreement, any Dispute will be resolved exclusively and finally by binding arbitration by a single arbitrator conducted pursuant to the national arbitration rules of the ADR Institute Of Canada, Inc. Notwithstanding any choice of law provision included in this Agreement, this arbitration is subject to the Arbitration Act, 1991 (Ontario), as amended. The arbitration will take place exclusively in Toronto, Ontario. The language of the arbitration shall be conducted in English. Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Compugen under this Agreement may litigated in court rather than through arbitration, at Compugen’s sole discretion.

Governing Law

These Terms and any supply of Third Party Products and Services hereunder will be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of laws rules. The rights and remedies provided to Compugen under these Terms are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.

Compliance with Law

The parties agree to comply with the provisions of all local, provincial, and federal laws that expressly or by implication apply to such party in performing its obligations under this Agreement.

Publicity

Each party shall not, without the prior written consent of the other party, use such party’s name, logo, or trademark in materials that may be published as part of its marketing efforts.

Miscellaneous

Compugen may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Third Party Products and Services or assign the right to receive payments, without Customer's consent. Customer may not assign its rights or obligations under these Terms without the prior written consent of Compugen. Subject to the restrictions on assignment contained herein, these Terms will be binding on and enure to the benefit of the parties hereto and their successors and permitted assigns. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Where the context of this Agreement requires, singular terms shall be considered plural, and plural terms shall be considered singular. The relationship between the parties is that of independent contractors. Notices provided under this Agreement will be given in writing at the address of Compugen and the Customer set out in the Order Form or invoice for the Third Party Products and Services and deemed received upon the earlier of actual receipt, the date of transmission of a notice sent by email or five (5) days after mailing if mailed postage prepaid by regular mail or one (1) day after such notice is sent by courier. Each party agrees that electronic signatures of the parties have the same force and effect as manual signatures.