1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person, firm or company who purchases the Products from the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Order: the order by the Customer for the Products, as set out in the purchase order form of the Customer.
Products: the products (or any part of them) set out in the Order.
Quotation: A written statement provided by the Supplier, detailing the cost of products required by the Customer.
Supplier: Isca Biochemicals Limited, incorporated and registered in England and Wales with company number 07802238, whose registered office is at 26 Hanover Road, Exeter, Devon EX1 2TL
1.2 Construction. In these Conditions, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a party includes its personal representatives, successors or permitted assigns. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 An Order placed by the Customer shall be deemed to constitute acceptance by the Customer of any valid Quotation (in accordance with clause 2.6 below) issued by the Supplier.
2.3 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable specification submitted by the Customer are complete and accurate.
2.4 An Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point a separate Contract shall come into existence. Each and every Order accepted by the Supplier shall constitute a separate Contract, independent from any other.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in any catalogues or brochures of the Supplier are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
2.7 A Quotation for the Products given by the Supplier shall not constitute an offer. A Quotation shall only be valid for a period of 30 days from its date of issue or until revised or altered by the Supplier, whichever is the earlier.
3.1 All Products supplied by the Supplier are strictly intended for in vitro research and investigational purposes only. Any Products supplied by the Supplier are not intended for human or drug use or for administration to animals except those designated as experimental animals.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the use of any specification by the Supplier. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend any specification of the Products if required by any applicable statutory or regulatory requirements.
3.4 All Products offered for sale by the Supplier to the Customer are subject to availability and notwithstanding any acceptance by the Supplier shall not be liable in any manner whatsoever to the Customer in the event that it is unable to supply the Products ordered by the Customer.
4.1 The Supplier will package the Products in a suitable manner for dispatch. The Supplier shall dispatch the Products to the location set out in the Order by reputable international courier or by first class mail or by other means at the Supplier’s discretion. All costs of delivery are to be added to the price of the Products as at the date of invoice. In respect of deliveries outside the United Kingdom the customer shall be responsible for any import taxes or customs duties in respect of the Products.
4.2 Delivery of the Products shall be completed on the dispatch of the Products by the Supplier, either by first class mail or upon collection by courier. The Supplier shall deliver the Products at any time after the Supplier notifies the Customer that the Products are ready.
4.3 The Supplier shall not be liable in respect of any damage to or discrepancy, shortage or loss in transit of the Products. If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products.
4.4 The Customer shall take delivery of the Products. Should the Customer fail to take delivery of the Products, the Supplier shall be entitled to resell or otherwise dispose of part or all of the Products. The Customer shall not be entitled to reject the Products if the Supplier delivers up to and including 5% more or less than the quantity of Products ordered. The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect shall not entitle the Customer to cancel any other instalment.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure event or the failure of the customer to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6 The Customer shall comply with any requirements of the appropriate delivery service in respect of any damage, discrepancy, shortage or loss.
5.1 In the event that the Customer notifies the Supplier of any defect, discrepancy or shortage of the Products, the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full. These conditions shall apply to any replacement Products supplied by the Supplier.
5.2 Any such notification by the Customer to the Supplier shall be:
(a) in writing; and
(b) within seven (7) days of receipt of the Supplier’s invoice; or
(c) within a reasonable time of discovery of such defect, discrepancy or shortage;
5.3 In the event that the Customer notifies the Supplier, the Supplier is to be given a reasonable opportunity of examining the Products and the Customer (if asked to do so by the Supplier) is to return such Products to the place of business of the Supplier at the cost of the Customer.
5.4 The Supplier shall not be liable to the Customer and or any customer of the Customer for any damage, defect or discrepancy in the Products in the following events:
(a) the Customer, having indicated an intention to reject the Products, makes further use of them; or
(b) the defect arises because the Customer failed to follow the oral or written instructions of the Supplier as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice of the same; or
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
(d) the Customer alters such Products; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 The Supplier gives no warranty as to the fitness of the Products for any particular purpose whether or not notified to the Supplier and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer upon delivery, as defined by clause 4.2.
6.2 Title to the Products shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Products.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) hold the Products on a fiduciary basis as the bailee of the Supplier;
(b) store the Products separately from all other products held by the Customer so that they remain readily identifiable as the property of the Supplier;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause ; and
(f) give the Supplier such information relating to the Products as the Supplier may require from time to time,
but the Customer may resell or use the Products in the ordinary course of its business.
6.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Products shall be the price set out in the Quotation, or, if no price is quoted, the price set out on the website of the Supplier in force as at the date of delivery.
7.2 The price of the Products is exclusive of the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer.
7.3 The price of the Products is exclusive of amounts in respect of value added tax (VAT). The Customer 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 the Products.
7.4 The Supplier may invoice the Customer for the Products on or at any time after the completion of delivery.
7.5 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 3% per annum above the base rate of Barclays Bank PLC from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. THE CUSTOMER'S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, or the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors, except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation; or
(b) notice is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) or the Supplier becomes otherwise aware of the appointment of, or filing of documents for the appointment of, or intention to appoint, a receiver and or manager, administrator or administrative receiver over the assets of the Customer or any part thereof; or
(c) a resolution is passed or a petition presented to any court for the winding-up of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(d) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within fourteen (14) days; or
(e) the Customer is deemed unable to pay its debts or as having no reasonable prospect of doing so within the meaning of section 123 of the Insolvency Act 1986 (being a company) or section 268 of the Insolvency Act 1986 (being an individual) or (being a partner) has any partner to whom the foregoing apply; or
(f) the Customer is the subject of a bankruptcy petition or order; or
(g) the Customer dies or, or by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation
(h) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business
(i) any event occurs, or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h).
8.3 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 The Customer hereby undertakes to indemnify the Supplier against any claim which may be made against it by any third party arising from the use or sale of the Products by the Customer.
9.2 Subject to clause 9.3, the Supplier shall be under no liability whatsoever for any defect in, failure of or unsuitability for any purpose of any Products supplied by the Supplier to the Customer.
9.3 Nothing in these Conditions shall limit or exclude the liability of the Supplier for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Products Act 1979; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.4 Subject to clause 9.3:
(f) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(g) the total liability of the Supplier to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Order.
10. FORCE MAJEURE
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event, being any event beyond the Supplier’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
Any notice or other communication in connection with the Contract shall be in writing, addressed to a party (being a company) at its registered office or its principal place of business (in any other case). Notice shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address of a party; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Any provision or part-provision of the Contract found to be invalid, illegal or unenforceable by any court or relevant authority shall be deemed to be deleted, with the minimum modification necessary applied to make it legal, valid and enforceable and the validity and enforceability of the other provisions of the Contract shall not be affected.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
The Contract, and any dispute or claim in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the Supplier and the Customer irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.