Date: 27-FEB-2024

1. Definitions

Affiliates: an organization, which directly or indirectly controls a party to the Contract; an organization, which is directly or indirectly controlled by a party to the Contract; or an organization, which is controlled, directly or indirectly, by the ultimate parent company of a party to the Contract, where ‘Control’ is defined as owning more than fifty percent of the voting stock of a company or having otherwise the power to govern the financial and the operating policies or to appoint the management of an organization. With respect to Roche the term “Affiliate” shall not include Chugai Pharmaceutical Co. Ltd., 1-1, Nihonbashi-Muromachi 2-chome, Chuo-ku Tokyo, 103-8324, Japan (“Chugai”) and its subsidiaries, unless Roche opts for such inclusion of Chugai and its subsidiaries by giving written notice to the Supplier.

Application: the Supplier’s submission or bid to partake in an Offering.

Force Majeure: any event or circumstance not within the reasonable control of Roche including,
without limitation, industrial action, war, governmental action or regulation, act of God, epidemic or pandemic, riots or unavailability of stocks or materials.

Offering: an individual set of services provided by Roche to the Supplier as part of the Supplier Growth Accelerator initiative (e.g., the “Opportunity to Grow Business” set of services).

Offering Agreement: the contract between Roche and the Supplier for participation in a Supplier Growth Accelerator Offering, which incorporates these Terms by reference.

Roche: Roche Diagnostics International Ltd, a company with offices at Forrenstrasse 2, CH-6343 Rotkreuz.

Supplier: the person, firm, company or authority who purchases the Offerings from Roche.

Terms: these Supplier Growth AcceleratorTerms and Conditions.

2. Scope

2.1 These Terms shall apply to all Offerings provided by Roche, and are an integral part of all Offering Agreements. All Offerings shall pertain only to Roche diagnostics products and services.

2.2 These Terms apply to the Offering Agreement to the exclusion of any other terms that the Supplier seeks to impose or incorporate (including, without limitation, any terms which the Supplier purports to apply), or which are implied by trade, custom, practice or course of dealing. To the extent these Terms or the terms of the Offering Agreement conflict with any other terms in Supplier’s existing Roche agreements, these order of precedence shall be (1) the Offering Agreement, then (2) these Terms, and then (3) any other agreements between the parties as of the Offering Agreement Effective Date (as defined therein).

3. Basis of Contract

3.1 An Offering made available by Roche to the Supplier shall not constitute an offer.

3.2 The Application submitted by Supplier shall be non-binding and shall be utilized to indicate Supplier’s interest in participating in an Offering. Though the Application is non-binding, any Supplier-provided content contained within the Application shall form the basis of Roche’s offer to the Supplier, unless expressly agreed otherwise in the Offering Agreement.

3.3 Roche shall evaluate each Application and shall notify Supplier regarding any successful Application. Roche’s notification of success shall constitute an offer.

3.4 Roche’s offer shall be deemed accepted upon a fully executed Offering Agreement.

4. Performance

4.1 Services shall be performed in accordance with the Offering Agreement.

4.2 The Supplier shall comply with any reasonable instructions of Roche in relation to the Shared Growth Accelerator initiative.

4.3 Roche reserves the right to amend the Offerings at any time and for any reason, including but not limited to if required to do so by any applicable statutory or regulatory requirement.

5. Warranties, Indemnification, and Limitation of Liability

5.1 The Supplier warrants that the information contained in any Application is complete and accurate and that the person submitting the Application has the authority to do so on behalf of the Supplier.

5.2 Roche warrants that the services shall be performed with due care and skill.

5.3 Except as provided within this clause 5, Roche shall have no liability to the Supplier in respect of the failure of the services to comply with the warranty set out in clause 5.2.

5.4 Roche does not give any representation or warranty or undertaking in relation to the services other than those set out in these Terms and accordingly any representation, warranty or condition that might be implied or incorporated into the Offering Agreement are excluded to the fullest extent permitted by law. For avoidance of doubt, none of the services provided by Roche constitute professional or consulting services.

5.5 Roche shall not be liable to the Supplier, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Offering Agreement for loss of profit, business, revenue, anticipated savings or goodwill, in each case whether direct or indirect, or any type of special, indirect or consequential loss.

5.6 Roche’s total liability to the Supplier whether arising in contract, tort (including negligence), breach of statutory duty or otherwise under or in connection with the Contract shall be limited to the value of the Offering Agreement.

5.7 The provisions of this section 5 shall survive expiry or termination of the Contract.

6. Termination

6.1 Without affecting any other right of remedy available to it, Roche may immediately suspend performance of the Offering Agreement or terminate the Offering Agreement without liability to the Supplier if the Supplier commits a material breach of the Offering Agreement.

6.2 Without affecting any other right or remedy available to it, Roche may terminate the Offering Agreement for any reason on giving not less than three (3) months’ notice to the Supplier. A refund shall be provided for services, or a portion thereof, not performed.

6.3 Termination of the Offering Agreement for any reason shall be without prejudice to the rights and remedies of either party which have accrued up to termination.

7. Intellectual Property

7.1 Each party shall maintain its intellectual property rights in any material shared or disclosed during the Shared Growth Accelerator initiative.

7.2 Each party shall grant to the other party a limited non-exclusive, royalty-free, fully paid-up, non-transferable, non-assignable, non-sublicensable license to use the other party’s IP to the extent necessary to carry out the Offering. Said license shall expire upon termination or expiration of the applicable Offering Agreement.

7.3 No right or license is granted under the Offering Agreement to the Supplier under any patent, trademark, copyright, registered design or other intellectual property right, except the right to use the Roche logo if the “Roche Logo Usage & Certificate of Trust” Offering is included in a signed Offering Agreement between the parties.

8. Confidentiality

8.1 Any information or personal data transferred by either party for the execution or performance of the Offering Agreement is confidential and may not be used for other purposes, nor reproduced or made accessible to third parties. Either party undertakes to treat as confidential for a period of 5 years from the effective termination or expiry of the Offering Agreement all information of the other party of which it becomes aware during and in connection with the initiation, conclusion and performance of the Offering Agreement and which is marked as confidential; the same shall apply to information which, although not marked as confidential, would appear to a reasonable person to be confidential or proprietary.

8.2 The party receiving confidential information from the other party (“Receiving Party”) is obliged (a) to keep the confidential information secret and to make it accessible only to those persons who need to know of the confidential information for the proper performance of the contract, have been informed of the confidentiality of the confidential information, and are obligated to maintain a comparable level of confidentiality; this notwithstanding, Roche may share the confidential information with Roche Affiliates for purposes of executing or performing under the Offering Agreement.
(b) not to record, transfer, disclose or otherwise exploit the confidential information, unless this is necessary for the performance of the Offering Agreement;
(c) not to use and/or imitate the confidential information outside the purpose of the execution of the Offering Agreement, in particular by reverse engineering;
(d) to keep secret the existence as well as the conditions of the Offering Agreement;
(e) to protect the confidential information by technical, organizational and legal measures appropriate to its value, but at least by measures that the Receiving Party would apply to its own confidential information of comparable value.

8.3 The Receiving Party may not use or exploit the confidential information contrary to the provisions of these Terms without the other party’s (”Disclosing Party”) written consent. Receiving Party shall therefore not use the confidential information for any IPR application; likewise, it shall not use the confidential information in such a way as to create a right of use for the Receiving Party under the applicable patent law.

8.4 The foregoing obligation shall not apply to information (i) that was lawfully in Receiving Party’s possession at the time it was provided, (ii) that is publicly known or later became publicly known through no fault of Receiving Party, (iii) that was lawfully provided to Receiving Party by a third party without breach of a confidentiality obligation, or (iv) that is required to be disclosed to a court or government agency pursuant to a court or government agency purchase order to comply with the order.

8.5 The aforementioned confidentiality obligation shall continue to apply after termination of the Offering Agreement, unless one of the aforementioned exceptions subsequently occurs. Receiving Party agrees to return or destroy, upon Disclosing Party’s express request, all confidential information received from Receiving Party, including all copies thereof, within a period of ten (10) business days after receipt of a request to do so, except for confidential information (i) for which Supplier is required by law to retain and store the data and (ii) which cannot be technically deleted due to automatic electronic backup routines.

9. Data Privacy

9.1. Both parties agree to comply with all requirements of applicable data protection laws.

9.2 The parties shall process all personal data within the meaning of the EU General Data Protection Regulation (GDPR) that is passed on or disclosed to them by the other party or otherwise comes to their knowledge in connection with the initiation or performance of the contract exclusively in accordance with the purpose of the contract and the applicable data protection law.

9.3 The Supplier undertakes to conclude the contractual agreements with Roche that are in each case necessary or indicated in connection with the performance of the contract and for compliance with data protection law, in particular purchase order processing agreements pursuant to Art. 28 GDPR or joint responsibility agreements pursuant to Art. 26 GDPR.

9.4 The Supplier shall inform Roche without undue delay of any data protection violations in connection with the performance of the contract. In case Supplier receives requests or other notifications from persons who are affected by a processing of their data by Roche, Supplier shall forward the requests or notifications to Roche by appropriate means without undue delay.

9.5 In connection with the initiation and performance of the contract, Roche shall process the personal data necessary for this purpose, including in particular data of employees and contact persons of the Supplier in the context of Supplier management and the provision of services. The Supplier undertakes to bring all data protection information provided to it by Roche to the attention of its employees and other persons involved in the initiation or performance of the contract whose data is processed by Roche as soon as possible. Information on data processing by Roche is also available under “Data Protection” at www.roche.de.

10. General

10.1 Applicable Law. The parties agree to comply with all applicable laws, regulations and guidelines in relation to the provision of services under the Offering Agreement. Roche shall also comply with the Roche Code of Conduct.

10.2 Remedies. The rights and remedies of Roche under these Terms are cumulative and not exclusive of any other rights or remedies that may be available to Roche under applicable law.

10.3 Entire Agreement. Without prejudice to clause 2.2, each Contract constitutes the entire agreement between the parties and supersedes and extinguishes any previous drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral relating to the relevant supply of services. By accepting an offer in accordance with clause 3.4, the Supplier acknowledges that it has not been induced to enter into an Offering Agreement by any representation or warranty other than those contained in these Terms and agrees that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud.

10.4. Assignment. Neither party is permitted to assign or transfer its rights of obligations under the Offering Agreement, except that Roche is entitled to transfer these Terms or the Offering Agreement, as well as individual rights and obligations, arising thereof to Roche Affiliates without the Supplier’s prior consent.

10.5 Amendment. Modifications or additions to the Offering Agreement require a written or electronic instrument, documenting the consent of both parties.

10.6 Relationship between Parties. The Shared Growth Accelerator is a fee-for-service initiative in which Roche is a service provider and Supplier is a recipient of Roche services. Participation in any Offering is not intended to, or shall be deemed to, establish any partnership, collaboration, endorsement, or joint venture between the parties, constitute either party the agent of the other, or authorize either party to make or enter commitments for or on behalf of the other party.

10.7 Waiver. A waiver of any right or remedy under the Offering Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Offering Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Offering Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

10.8 Separability. If any provision or part-provision of the Offering Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 9.8 shall not affect the validity and enforceability of the rest of the Offering Agreement.

10.9 Force Majeure. If performance is delayed by an event of Force Majeure, Roche shall be entitled to cancel or suspend services without prejudice to its right to receive a credit for any services already delivered. Roche shall not be liable for any loss or damage arising directly or indirectly as a result of an event of Force Majeure. Either party may terminate an Offering Agreement if an event of Force Majeure continues for a period of 6 months.

10.10 Notice. Any notice or other communication given to a party under or in connection with the Offering Agreement shall be in writing, which may include email.

10.11 Governing Law and Venue. These Terms are governed by Swiss law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Exclusive venue of jurisdiction is Zug, Switzerland.