Terms for the Supply of Services.

THESE TERMS FOR THE SUPPLY OF SERVICES (“TERMS” OR THIS “AGREEMENT”) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU (“CUSTOMER”) AND COMPUGEN INC. (“COMPUGEN”). BY REQUESTING OR PLACING AN ORDER FOR SERVICES TO BE PERFORMED BY OR ON BEHALF OF COMPUGEN (“SERVICES”), CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CUSTOMER AND COMPUGEN HAVE SIGNED A SEPARATE MASTER SERVICES AGREEMENT AND RELATED STATEMENT OF WORK, 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 TO SUCH ORDER.

Administrative Matters

Orders for Services may be placed via Compugen’s website, a purchase order, Compugen’s standard Statement of Services, or other oral or written request (collectively, “Order Forms”). Orders placed by Customer are not binding until the parties have agreed in writing to the quote for Services provided by Compugen. Service delivery times are estimates only. 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, and the Services requested 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 for the 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 Services. Fulfillment of an Order Form does not constitute acceptance of any Customer’s terms and conditions and does not serve to modify these Terms.

 

Notwithstanding the foregoing, where Services are ordered through a Compugen standard Statement of Services, each Statement of Services hereby incorporates these Terms with respect to the Services performed. In the event of a conflict between any term of the Statement of Services and these Terms, these Terms will supersede, except as explicitly permitted herein or as agreed between the Customer and Compugen in the applicable Statement of Services by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Services and not to future Statements of Services.

 

Changes to the scope of the Services described in an Order Form will be made only in writing executed by authorized representatives of both parties. Compugen will have no obligation to commence work in connection with any such change, unless and until the change is agreed upon in writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms or the applicable Statement of Services. Compugen reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Compugen’s services to its customers, (ii) the competitive strength of or market for Compugen’s services, or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable law.

 

Customer consents to receiving electronic records and 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 or communications provided in non-electronic form, by contacting Compugen at https://engage.compugen.com/subscribe

 

To the extent that the Services involve the installation of computer software or programs onto any computer systems, then Customer confirms that it is the owner or authorized user of such computer systems and expressly authorizes Compugen to install such computer software or programs onto the computer systems.

Third Party Products or Services

For the avoidance of doubt, this Agreement relates only to the Services provided to the Customer by employees and subcontractors of Compugen and does not relate to third party products or services sold by Compugen as a sales agent ("Third Party Products and Services"). The terms related to Third Party Products and Services shall be those set out in the “Terms of Third Party Product and Service Sales” documented and published by Compugen from time to time and posted on its website (https://engage.compugen.com/product-terms). The purchase of 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 Services, the Terms of Third Party Product and Service Sales shall apply to the Third Party Products and Services and these Terms shall apply to the Services provided to the Customer.

Customer Responsibilities

In addition to any specific Customer duties set forth in any applicable Statement of Services, Customer agrees to cooperate with Compugen in connection with the performance of the Services 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 Services (“Customer Information”), (iii) access to Customer’s offices, equipment, systems and networks, as reasonably necessary or appropriate to perform the Services, (iv) 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 (v) all Required Consents necessary for Compugen to provide the Services (collectively, “Customer Responsibilities”). "Required Consents" means consents or approvals required to give Compugen and its subcontractors the right or license to access, use and modify all data and third party products. 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 the Services 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 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 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 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 Services and Work Products directly or indirectly by or through the Customer system or its access credentials, with or without Customer’s knowledge or consent.

 

Compugen will, and will cause its subcontractors to, follow all reasonable security rules and procedures communicated in writing by Customer to Compugen from time to time.

On Site Services 

When the Services are performed at Customer's premises, Compugen will attempt to perform such Services within Customer's normal business hours unless otherwise jointly agreed to by the parties. Compugen will

comply, and cause its Personnel to comply, with all reasonable on-site safety and security policies communicated by Customer in writing to Compugen in advance. When the Services are provided on Customer's premises or at another location designated by Customer, Customer agrees to maintain commercial general liability insurance coverage in an amount that is not less than one million dollars ($1,000,000.00 CAD) per occurrence to protect Compugen and Customer's premises and to indemnify and hold Compugen and its subcontractors and affiliates, and its and their agents and directors, officers, employees and other representatives harmless from any loss, cost, damage or expense arising out of any liability including but not limited to death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of Compugen's gross negligence or willful misconduct.

Payment and Pricing

If Services are being performed on a time and materials basis, any estimates provided by Compugen are for planning purposes only.

 

Customer agrees to pay the total purchase price or fees for the Services plus travel expenses, where applicable, and other costs identified on the invoices 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, sales tax or other charges (including but not limited to environmental or similar fees), imposed on, in respect of or otherwise associated with all of the 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 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 payment, Compugen may immediately suspend or terminate the provision of Services 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.

Warranties

Compugen represents and warrants that the Services will be performed in a good and workmanlike manner. Compugen’s sole obligation and Customer’s exclusive remedy in respect thereof is to, in a commercially reasonable time period, re-perform the non-conforming Service or, at Compugen’s reasonable discretion, to terminate this Agreement in respect of the non-conforming Service and refund to Customer the fees paid therefore. Such warranty shall only be applicable if Customer notifies Compugen in writing within two (2) business days after performance of the applicable Services. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPUGEN MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

 

Customer shall be solely responsible for backups prior to the provision of Services by Compugen as well as daily back-up and all other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. COMPUGEN, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE, ALTERATION, DESTRUCTION, OR CORRUPTION OF DATA AND SOFTWARE.

Customer Indemnity

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.

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 THE SUPPLY OF SERVICES OR THIS AGREEMENT IS HEREBY LIMITED TO THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM; OR (B) TEN-THOUSAND ($10,000.00) CANADIAN DOLLARS.

 

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 NETWORKS, 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) SERVICES NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE SERVICES.

 

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.

Ownership and Limited License

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's sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trademark, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work product, materials or other deliverables (collectively, "Work Product") will be, upon payment in full, a non-transferable, non-sublicensable, non-exclusive, royalty-free license to use such Work Products solely as necessary in the conduct of the Customer’s own business for the same purpose for which the Work Product was obtained. Customer acknowledges that Compugen shall own all intellectual property rights and other proprietary rights in and to the Services and Work Products, and information Compugen provides to Customer as part of this Agreement, and any other intellectual property developed, designed or discovered in performance of this Agreement hereunder or pre-existing. Unless otherwise explicitly set out herein, nothing in this Agreement grants any right, title, or interest in or to any Work Product. Customer acknowledges that Compugen may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use a Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.

 

From time to time, Customer or any of Customer’s Personnel may send or transmit communications or materials to Compugen recommending changes or improvements to the Services, including any comments, questions, suggestions or the like (“Feedback”). Customer (on behalf of itself and its Personnel) hereby assigns to Compugen all right, title, and interest in, and Compugen is free to use, without attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. For the avoidance of doubt, Compugen is not required to use any Feedback.

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 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 the Services 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.

If a Receiving Party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Disclosing Party’s Confidential Information, the Receiving Party will give the Disclosing Party prompt notice of such request (to the extent permitted by applicable law) so that the Disclosing Party may seek an appropriate protective order or similar protective measure. If Receiving Party remains required to disclose any Confidential Information, Receiving Party shall only disclose that portion of the Confidential Information that Receiving Party is legally required to disclose and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.

 

Each party agrees that, in the event of any breach or threatened breach of this section, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety.

Termination

Either party may terminate performance of Services 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 a Service, Customer will pay Compugen for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable Statement of Services or invoice. In such event, Customer will also pay Compugen for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate in respect of the 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 of Work Product and this survival provision).

Arbitration

Any claim, dispute, or controversy arising from or relating to these Terms or the supply of 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 Disputes 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 be litigated in court rather than through arbitration, at Compugen’s sole discretion.

Governing Law

These Terms and any sale of 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 supply of 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. The relationship between Compugen and Customer is that of independent contractors and not that of employer/employee, partnership, agency or joint venture. 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. 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, 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 the electronic signatures of the parties have the same force and effect as manual signatures.