VPG – Sample Submissions – Terms and Conditions

1 .Interpretation 

1.1 Definitions:

Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
Applicable Law: has the meaning in Clause 4.2.1.
Charges: the fees charged for provision of the Tests as set out in the Price List, or as otherwise agreed in writing between the Supplier and Client.
Client: the person, firm, company or other organisation identified in the Sample Submission Form.
Contract: the contract for the sale and purchase of Tests between Supplier and the Client, the Contract being comprised of one relevant Sample Submission Form and the Terms and Conditions.
Losses: all fines, damages, claims, demands, costs (including without limitation legal costs), charges, penalties and all other liabilities and losses.
Personnel: a party’s Affiliates, officers, employees, agents, contractors, and subcontractors.
Price List: the Supplier’s price list (as updated by the Supplier from time to time and available on request) which is applicable at the time of submission of the Sample Submission Form.
Sample Submission Form: the document setting out: (i) the Client account details; (ii) the animal patient details; (iii) the Samples submitted by the Client to the Supplier; (iv) the Tests; (v) the codes and prices of such Tests; and (vi) any other relevant animal clinical information.
Samples: the tissues and other samples sent by (or on behalf of) the Client to the Supplier.
Supplier: Veterinary Pathology Group Limited (company number 11006776) (or its relevant Affiliate providing the Tests to the Client).
Terms and Conditions: the version of these terms and conditions (as updated by the Supplier from time to time) which is available on the Supplier’s website at the time of submission of the Sample Submission Form.
Tests: the veterinary pathology tests offered by the Supplier (a single Test, for the purposes of the Charges, being one ‘request code’ as set out in the Price List).

2. Basics of Contract

2.1 By placing an order for the Tests using the Sample Submission Form (the “Order”), the Client accepts the Terms and Conditions and any other instructions supplied to the Client by the Supplier in relation to an accepted Order. Each Order comprises a separate Contract comprised of the relevant Sample Submission Form and the Terms and Conditions. The Terms and Conditions apply to the Order to the exclusion of any other terms that: (a) the Client seeks to impose or incorporate, or which are printed on any purchase orders, invoices, or any other documentation or
correspondence issued by the Client; or (b) are implied by trade, custom, practice or course of dealing. In the event of any conflict or inconsistency, the provisions of the Terms and Conditions shall (except where otherwise expressly stated and agreed) prevail over the provisions of the Sample Submission Form.

3. Services and Goods

3.1 The Supplier reserves the right to make changes to the Tests, where such changes are necessary to comply with any Applicable Law. Subject to the provisions of Clause 4.3, where the Supplier identifies any errors in the Test codes or Test prices (or any other commercial or administrative errors) in the Sample Submission form, the Supplier shall use reasonable endeavours to notify the Client as soon as reasonably practicable, but in no event shall the Supplier be responsible for the accuracy, completeness, suitability or otherwise of the Sample Submission Form submitted by the Client.

4. Client Responsibilities

4.1 Any dates or turnaround times quoted by the Supplier for the performance of the Tests are approximate only, and the time for Supplier’s delivery of the results or otherwise, or performance of the Supplier’s services, will not be of the essence.

4.2 The Client shall:

4.2.1. comply with all applicable laws, regulations, guidelines and health and safety requirements (“Applicable Law”) in the collection and handling of the Samples;

4.2.2. in respect of any Sample (and any potential or suspected pathogens within the Sample), remain (both before and after the delivery of the Samples to the Supplier) responsible for complying with any notification, handling, audit, record-keeping, processing and other duties to any competent authorities;

4.2.3 before the Sample is dispatched (or prior to the collection of any Sample by the Supplier, where applicable): (i) check the Sample Submission Form and include it with the Samples; (ii) ensure that Client has all rights and consents necessary for it to send the Sample and related information to the Supplier for the Supplier to use and deal with the Sample as set out in the Contract; and (iii) ensure that the Samples are sealed, handled and sent to the Supplier’s laboratory (or, where applicable, made ready for the Supplier to collect) within a timeframe and in an expert manner that complies with Applicable Law and good industry and laboratory practice for samples of the same kind (and which ensures the integrity of the Sample and the health and safety of the carrier, the public and the staff of the Client and Supplier); and (iv) checks, packages, and seals the Samples correctly;

4.2.4 (if Client, applying the level of knowledge and experience normally expected of a person experienced in the animal clinical industry, suspects that a Sample contains or could contain any pathogens which are or could be lifethreatening, or pose a risk of serious harm, to persons or property, “Additional Risk Sample”) notify the Supplier in writing, providing details of the Additional Risk Sample and suspected risk, and not send any Additional Risk Samples to the Supplier before the Supplier has confirmed in writing it is willing to receive such sample; and

4.2.5 in the event that Samples are dispatched to the Supplier via mail or courier, comply with: (i) all Applicable Law, including without limitation those which are relevant to the transportation of animal and pathology samples and all applicable postal regulations; and (ii) all reasonable instructions of the Supplier from time to time.

4.3 The Client acknowledges that: (i) the accuracy and completeness of the Sample Submission Form is critical to the Supplier’s Testing, and for the Supplier to understand the risk profile of (and any specific handling and safety processes to be applied to) the relevant Samples; and (ii) if the Sample Submission Form is incorrect, incomplete, inaccurate or inappropriate in any way (qualitatively and/or quantitatively), the Supplier could suffer significant Losses (including (without limitation) damage to health, reputation and business due to suspected or actual pathogens within the Sample that could have been appropriately risk managed had the Sample Submission Form been correctly, fully, accurately and appropriately completed). The Client shall be solely responsible for the Sample Submission form and the information therein, and shall ensure that: (a) it provides all information relevant to the Samples and Tests in the Sample Submission Form; (b) the Sample Submission Form and all information therein is complete and accurate, complete, true, clear, legible, comprehensive, unambiguous, not misleading, legal, and correct in all respects. The Supplier shall not be liable for any Losses arising from any inaccuracy in or incompleteness of the Sample Submission Form or the Client’s failure to comply with this Clause 4.3.

4.4 The Client shall provide all information and assistance as may reasonably be required by the Supplier for it to perform the Tests.

4.5 The Client shall not use the Test results, reports or related information: (a) for a different or incorrect customer nor animal than the one to which the Sample Submission Form relates; (b) to produce its own reports, data or analysis; or (c) for any court or other proceedings or in any toxicology reports; or (d) for any purpose other than diagnostic use in relation to the Sample Submission Form. The Supplier shall not be liable for any Losses arising from the Client’s failure to comply with this Clause 4.5.

4.6 The Client shall indemnify and hold harmless the Supplier and Supplier Personnel from and against (on a full indemnity basis) all Losses suffered or incurred by the Supplier and Supplier Personnel arising out of or in connection with: (a) the Client or Client Personnel’s breach of Clauses 4.2 and/or 4.5; and (b) any inaccuracy in or incompleteness of the Sample Submission Form, and any breach of Clause 4.3 by the Client or Client Personnel. The Client’s liability under this indemnity is not limited by Clause 10.3 or excluded by Clause 10.2 or any other provision of the Contract.

5. Delivery, Acceptance, and Title to Samples

5.1 The Client shall be responsible for: (i) the completion of the delivery of the Samples to (or making the Samples available for collection by) the Supplier’s laboratory; and (ii) the associated costs of packaging, insurance, and transport if required.

5.2 The Client acknowledges and agrees that, without prejudice to the provisions of Clause 4: (a) title in, and risk of loss or damage to, the Samples (including without limitation Non-Accepted Samples, as defined below) passes to the Supplier on completion of the delivery of the Sample to the Supplier (or, where appliable, collection of the Sample by the Supplier); and (b) the Supplier, as owner of the Samples, shall be entitled to: (i) destroy the Samples (and their related data), including (without limitation) to destroy Non-Accepted Samples before testing, and the Accepted Samples (as defined below) after testing; and (ii) otherwise use and deal with the Samples in its absolute discretion.

5.3 Following completion of the delivery to (or collection by) the Supplier, the Supplier reserves the right to conduct an initial examination of any Sample to check its condition before analysis, in line with the industry recognised guidelines, and the Client will provide all reasonable assist red by the Supplier to facilitate such examination.

5.4 Following the initial (or any further) examination, the Supplier shall notify the Client as soon as reasonably practicable in the event that a Sample cannot be accepted for testing (“Non-Accepted Sample”), and a new Sample is required, as a result of: (i) deficiencies in such Sample; (ii) the Sample having been spoilt in transit or being unsafe or posing an unacceptable risk; (iii) the Sample not being as described in the Sample Submission Form (or not being as expected by the Supplier, having regard to the information contained in) the Sample Submission Form; and/or (iv) the Supplier being unable to conduct some or all of the Client requested Tests for any reason whatsoever, and the Client acknowledges that the Contract will terminate and it will in such instance
need to submit a new Sample and Order to the Supplier.

5.5 A Sample collected by the Client is deemed accepted (“Accepted Sample”) by the Supplier if no notification rejecting the Sample is sent to the Client within 7 days of receipt of the Sample at the Supplier’s laboratory.

6. Warranties 

6.1 The Supplier represents and warrants to the Client that the Tests will be performed with reasonable skill and in accordance with Applicable Law.

6.2 Except as expressly provided in the Contract or to the extent they cannot be excluded by law, the Supplier gives no warranties or representations to the Client in respect of the Tests, and the Supplier hereby excludes any implied condition or warranty concerning the quality, timeliness or fitness for purpose of the Tests and results, or concerning the Supplier’s performance of the Tests or the Contract, whether such condition or warranty is implied by statute or common law, or otherwise.

6.3 Without prejudice to the provisions of Clause 4, the Client represents and warrants to the Supplier that, up to the point of delivery of the Samples to the Supplier, the Client shall comply with all Applicable Laws in respect of the collection and transportation of animal clinical Samples.

7. Compensation and Invoicing 

7.1 The Client shall pay the Charges for the Tests. All Charges, and the prices quoted in the Supplier’s Price List, are exclusive of VAT.

7.2 The Supplier will invoice the Charges in accordance with the Price List or as otherwise agreed in writing between the parties.

7.3 The Client shall pay all invoiced amounts within seven (7) days from the date of the invoice, or within thirty one (31) days where a direct debit payment arrangement is set up between the Client and the Supplier (or the Supplier’s third party direct debit collection provider).

7.4 Where any taxable supply for VAT purposes is made under the Contract between the Client and the Supplier, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of Tests at the same time as the Charges are due.

7.5 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law. The Client shall not be entitled to assert any credit, set-off or counter-claim against any amount or the Supplier in order to justify withholding payment of any such amount (whether in whole or in part). The Supplier may, without limiting its other rights or remedies, set off, withhold or deduct any amount owing to it by the Client against any amount payable by the Supplier to the Client, whether under the Contract or otherwise.

7.6 If the Client fails to pay the Supplier’s invoices by the due date, then, without limiting the Supplier’s other rights or remedies, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 7.6 will accrue each day at a rate of 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7. 7 The Supplier at its sole discretion reserves the right to increase its pricing and the Charges, and to update its Price List, for any reason at any time. Where reasonably practicable, the Supplier will endeavour to provide the Client with 21 days’ notice (the Client acknowledging that the update to the price, Charges and Price List shall apply whether or not the Supplier provides such notice).

8. Data Protection and Confidentiality

8.1 In this Clause 8, “data controller”, “personal data” and “process” shall have the meaning given to them in applicable UK data protection laws (“DP Laws”).

8.2 The parties intend that the only personal data shared under the Contract shall be the business contact details of the other party’s representatives (“Relevant Data”). In respect of such
Relevant Data, each party will comply with all applicable obligations under the DP Laws as a separate data controller.

8.3 The Client shall not share, and the parties acknowledge that the Supplier shall not accept, any personal data from the Client relating to the Client’s customer. In the event that the Supplier receives such information from the Client, the Supplier shall, at its own option, destroy or redact such data.

8.4 “VPG CI” means: (i) the Supplier’s and its Affiliates’ pricing and charges, including without limitation the Price List; (ii) the Contract; (iii) the terms and details of the Contract; (iv) VPG IP (as defined in Clause 13.1); and (v) other information relating to the Supplier or its Affiliates which is marked confidential or which is of a confidential nature. The Client shall keep the VPG CI confidential and use it only for the purposes of the Contract. The Client shall not disclose the VPG CI to any person except: (a) with the Supplier’s specific prior written consent; or (b) to its employees who need to know the VPG CI strictly as necessary for the Client to comply with its obligations in the Contract, provided that such employees are aware of, and comply with, confidentiality obligations at least as protective of the VPG CI as set out in this Clause 8.4. The provisions of this Clause 8.4 do not apply to information which is already in the public
domain (provided that it is not in the public domain as a result of the Client’s or Client Personnel’s breach of the Contract or their confidentiality obligations).

8.5 The Client acknowledges and agrees that (notwithstanding any other provision of the Contract or otherwise) the results of the Tests and related data and information shall be the confidential information of the Supplier. The Client shall (except where otherwise agreed in writing between the parties) only be entitled to use the Test results for record keeping and for sharing them with its customer to whom the results relate.

8.6 The Client acknowledges that Supplier and its Affiliates may monitor, record, store and use any telephone, email or other communication with Client in order to check any instructions, for training purposes, for crime prevention and to improve the quality of Supplier’s customer service, and Client here by consents thereto.

9. Termination and Suspension

9.1 Either party shall have the immediate right to terminate a Contract, effective upon provision of written notice to the other party, if such other party: (i) commits a material breach of its contractual obligations, which, in the case of breach capable of remedy, has not been remedied within 30 days of receipt of a written request from the non-breaching party; or (ii) becomes insolvent, enters into bankruptcy or has bankruptcy proceeding instigated against it, has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency), makes a general assignment for the benefit of its creditors or enters into or proposes any composition or arrangement with its creditors generally, or makes a written statement to the effect that the party is unable to pay its debts as they become due, or is the subject of or petitions for an order
made or a resolution passed for an administration, or has a receiver, administrator or manager appointed over any of its assets, or a court (or arbiter with authority to so determine) determines that the debtor is unable to pay its debts (or any equivalent circumstances occur under the laws of any other jurisdiction). The Supplier shall have the immediate right to terminate on notice to the Client if the Client fails to pay for the Tests on the due date, or if the Client’s financial position deteriorates so far as to justify the opinion that the Client’s ability to pay for the Tests, or otherwise give effect to the terms of the Contract, is in jeopardy.

9.2 In the event that: (a) the Supplier in its absolute discretion deems any Sample to be unsafe or to pose an unacceptable risk to the Supplier, Supplier Personnel, or any third party; or (b) any of the Supplier’s invoices remain unpaid after the due date for payment, the Supplier shall be entitled (without liability to the Client) to refuse to conduct, or suspend the provision of, any further Tests under any Order.

9.3 A party’s right of termination under this Clause 9 shall be in addition to any other rights or remedies it may have at law or in equity.

9.4 The termination of the Contract howsoever shall not affect the rights, duties and liabilities of either the Client or the Supplier accrued prior to termination. The terms and conditions which expressly or by implication have effect or continue after termination shall continue in force, notwithstanding termination.

10. Exclusion and Limitation of Liability

10.1 Nothing in the Contract excludes or limits the liability of either party for: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) any other liability that cannot be excluded or limited under Applicable Law; or (iii) its liability under the indemnity in Clause 4.6 (indemnity).

10.2 Neither party shall be liable to the other for any loss of profit, loss of income, loss of business, loss of or damage to goodwill, loss of anticipated savings (in each case whether direct or indirect), or any indirect or consequential loss of whatever nature howsoever caused.

10.3 Save for those heads of loss set out in Clause 10.1, the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to the total aggregate of all sums properly due and payable to the Supplier: (a) (for all liabilities and Losses relating to a Test or Tests) for the affected Test or Tests; or (b) (for all other liabilities and Losses) under the Contract.

10.4 Each party acknowledges that in entering into a Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that its only remedy in respect of any representation or warranty in the Contract (whether made innocently or negligently) shall be for breach of contract.

10.5 The Client acknowledges and agrees that:

10.5.1 the Supplier shall not be liable for any delays, failures or Losses to the extent that they arise from the Client’s breach of the Contract or any other acts or omissions of the Client, Client Personnel, or their suppliers; and

10.5.2 (without prejudice to the generality of Clause 10.5.1 and the Supplier’s other liability exclusions and limitations) in the event of Client’s failure to comply with Clause 4.2 or 4.3, the Supplier shall be entitled to: (i) delay the analysis of a Sample; or (ii) refuse to Test or otherwise perform analysis of the Sample.

10.6 Where the Client obtains the Sample from the animal, the Supplier shall (without prejudice to its other liability exclusions and limitations) not be liable for incorrect results or inaccurate Tests or associated reports or results arising from:

10.6.1 any tampering with a Sample or a break in the chain of custody for a Sample that is identified by the Supplier as having taken place prior to the Sample arriving at the Supplier’s laboratory;

10.6.2 information or instructions supplied by the Client that are incomplete, inaccurate, incorrect, illegal, illegible or provided in the wrong form;

10.6.3 any act or omission of the Client that results in the Sample being unfit for analysis or which causes inaccurate results or Tests;

10.6.4 the loss of any Samples in transit to Supplier;

10.6.5 any failure of the Client to comply with Clauses 4.2, 4.3, or 4.5.

11. Subcontracting, Assignment and Third Party Rights

11.1 The Client shall not be entitled to assign, charge, subcontract or transfer its obligations under a Contract or any part of it without the prior written consent of the Supplier, such consent not to be unreasonably withheld. The Supplier may assign, charge, novate or transfer its rights and obligations under the Contract (in whole or in part) to any of its Affiliates without the Client’s consent. The Supplier reserves the right to subcontract its obligations under a Contract.

11.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to a Contract, except that the Supplier’s Affiliates shall be entitled to enforce the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any person other than the parties.

12. Force Majeure
12.1 Save in respect of the Client’s payment obligations, neither party shall be in breach of the Contract nor liable for delay in fulfilling its obligations or failure to perform its obligations if
such delay of failure results from any events beyond its reasonable control including (without limitation) any strikes, lockouts or other industrial disputes, protest, act of God, war, riot, civil commotion, pandemics, epidemics, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm, or default of Supplier’s suppliers or subcontractors (“Force Majeure Event”). If a Force Majeure Event exceeds one (1) month a Party may cancel the Contract without liability.

13. Ownership and Intellectual Property

13.1 Any intellectual property rights and data arising out of or in connection with the use of the Samples or Supplier’s (or Supplier Personnel’s) provision of the Tests or performance of the Contract, including without limitation the results and data created as part of (or derived from) the Tests and/or Samples, shall be owned by the Supplier (“VPG IP”).

14. Dispute Resolution

14.1 If a dispute arises out of or in connection with the Contract then: (i) the parties shall first seek to resolve the dispute in good faith through a meeting of their senior personnel; (ii) if the meeting fails to resolve the dispute within fifteen (15) days, either party may elect in writing to enter into an alternative dispute resolution procedure with the assistance of a mediator agreed by the parties or, in default of such agreement, appointed by the Centre for Effective Dispute Resolution, and shall attempt to settle the dispute in accordance with the CEDR Model Mediation Procedure. In the event of a scientific or technical dispute, the parties shall refer the matter to the Veterinary Defence Society (or any replacement body). The Parties shall bear their own legal costs of complying with this Clause 14, but the costs and expenses of mediation shall be borne by the Parties equally.

15. Waiver and Cumulative Rights and Remedies

15.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

15.2 Unless specifically provided otherwise, rights and remedies provided for or arising under the Contract are cumulative and do not exclude any other rights or remedies of the parties.

16. General

16.1 Severance: In the event that one or more of the provisions of the Contract is found to be unlawful, invalid or otherwise unenforceable, that or those provisions shall be deemed severed from the remainder of the Contract (which shall remain valid and enforceable).

16.2 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

16.3 Variation: Except as otherwise set out in the Contract, any variation, shall only be binding on the Client upon the Supplier giving the Client 21 days’ notice in writing of such variation.

17. Governing Law

17.1 A Contract (and any contractual and non-contractual dispute and claim under or in connection with it) shall be governed by the laws of England and the English Courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract.