Conditions of Sale of AGTC Bio Products Limited
1.1. In these Conditions of Sale, the following words shall have the following meanings:
1.2. 'Buyer' means the person with whom the Seller is contracting;
1.3. 'Buyer's Provisions' has the meaning given in Clause 3.1;
1.4. 'Contract' means the contract for the supply and purchase of the Goods between the Seller and the Buyer, subject to the provisions of these Conditions of Sale;
1.5. 'Conditions' has the meaning given in Clause 15.4;
1.6. 'Delivery Date' means the date specified on the Seller's acceptance of order, subject to Clause 10.2.
1.7. 'Goods' means the goods specified in the Seller's acceptance of order;
1.8. 'Payment Date' means the date of the Seller's invoice;
1.9. 'Price' means the price specified in the Seller's acceptance of order;
1.10. 'Seller' means AGTC Bio Products Limited;
1.11. 'Parties' means the Seller and the Buyer, and a reference to 'Party' shall mean a reference to either one of them.
2.1. The Buyer orders, and the Seller agrees to sell, the Goods at the Price for delivery by the Delivery Date.
2.2. The quantity and description of the Goods are set out in the Seller's acceptance of order.
3. Conditions applicable
3.1. These Conditions of Sale shall apply to the sale of the Goods by the Seller to the Buyer. Any provisions not set out in these Conditions of Sale, including those of the Buyer which the Buyer applies or purports to apply, shall not be the terms and conditions concerning the sale of the Goods by the Seller to the Buyer, however such provisions are introduced (including but not limited to provisions included on purchase order(s), confirmations of order or similar documents) ('Buyer's Provisions'). For the avoidance of doubt, the Buyer acknowledges and agrees that the Seller shall not be bound by any of the Buyer's Provisions.
3.2. The order for the Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to the provisions of these Conditions of Sale.
3.3. Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions of Sale.
3.4. Any variation of the provisions of these Conditions of Sale (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by the Seller.
4.1. The Buyer acknowledges and agrees that any description given of or applied to the Goods:
4.2. is only for the purpose of identifying the goods; and
4.3. shall not make the Contract a sale by description; and
4.4. is not relied on by the Buyer when entering into the Contract.
5.1. The Buyer acknowledges and agrees that where a sample of the Goods has been shown to and/or inspected by the Buyer:
5.2. the sole purpose of so doing was to enable the Buyer to judge the quality of the bulk; and
5.3. does not constitute a sale by sample.
6.1. The Buyer may not cancel the Contract without the written consent of the Seller, which if given shall be deemed to be on the express condition that the Buyer shall indemnify the Seller against all loss, damage, claims or action arising out of such cancellation unless otherwise agreed in writing.
6.2. The Seller reserves the right to make a cancellation charge if the Goods have been acquired by the Seller specifically to fulfil the order.
7.1. Following acceptance of the order the Seller may make any modification or improvement to any of the Goods without notice to the Buyer.
7.2. An order which specifies goods 'as previously supplied' shall not be a binding specification and the Goods will be supplied to the nearest current specification available.
8.1. The Buyer shall pay the Price for the Goods as stated on the invoice and not as stated in any quotation, estimate or documentation, or given orally.
8.2. The Seller reserves the right by notice given whether orally or in writing at any time before delivery to vary the price of the Goods. The Seller shall give the Buyer notice of such a price increase and shall not deliver the Goods if the Buyer shall cancel the undelivered balance of the Contract by notice to the Seller served within three days of receipt of the Seller's notice hereunder.
8.3. Unless otherwise agreed in writing between the Buyer and Seller, the Seller may deliver against any order an excess and/or deficiency up to ten per cent of weight or volume ordered without any liability whatsoever to the Buyer save that the price shall be adjusted accordingly.
8.4. Containers and/or packages are non-refundable unless stated in the Seller's quotation, acknowledgment or other documentation. Returnable containers and/or packages shall be returned empty by the Buyer to the Seller's address stated on the delivery note in good condition, carriage paid, within three months of delivery of the Goods. If not, such containers and/or packages will be chargeable at replacement value and no credit will be due on containers and/or packages for which a charge shall have been made by the Seller.
8.5. The price of the Goods is exclusive of any taxes (including without limitation Value Added Tax), duties and other impositions, all of which shall be paid or borne by the Buyer.
9.1. Payment for the Goods shall be made in full on the Payment Date. Time for payment is of the essence.
9.2. The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
9.3. If payment is not received by the Payment Date, the Seller shall be entitled:
9.4. to charge interest on the outstanding amount at the rate of 2% per annum above the base lending rate of Lloyds Bank plc, accruing daily;
9.5. to require that the Buyer make a payment in advance of any delivery not yet made;
9.6. not to make any delivery.
10.1. The Seller shall deliver the Goods to the address of the Buyer on the Delivery Date. The cost of delivery shall be in addition to the Price. The cost shall be subject to the method of delivery, and shall be payable at the same time and in the same manner as the Price.
10.2. For the avoidance of doubt, the Delivery Date or other date given under these Conditions of Sale is no more than an estimate, and shall not be of the essence.
11.1. The risk in the Goods shall pass to the Buyer on the Delivery Date.
12.1. The property in the Goods shall not pass to the Buyer until the Seller has received the payment of the Price (and any other sums that are due or owing to the Seller) in full, whether or not delivery has been made.
12.2. Until property in the Goods passes to the Buyer in accordance with Clause 12.1 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller's property.
12.3. Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer's business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
12.4. The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
12.5. Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under Clause 12.3 shall cease.
12.6. The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
12.7. The Buyer shall insure and keep insured the Goods to the full Price against 'all risks' to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
13.1. The Seller shall in respect of all unpaid debts due from the Buyer under the Contract or any other contract have a general lien on all goods and property of the Buyer in its possession (although such goods or some of them may have been paid for) and shall after the expiration of 14 days written notice to the Buyer be entitled to dispose of such goods and property as it deems fit and apply the proceeds towards such debts.
14. Acknowledgment of examination
14.1. The Buyer acknowledges and agrees:
14.1.1. that the Seller has given the Buyer a reasonable opportunity to inspect the Goods;
14.1.2. that the Buyer has inspected the Goods;
14.1.3. that the Buyer has satisfied itself as to the condition of the Goods;
14.1.4. that the Seller has not given any warranty or condition as to the quality of or fitness for any purpose of the Goods;
14.1.5. that all conditions or warranties, express or implied (whether by statute or otherwise) are expressly excluded;
14.1.6. that delivery of the Goods to the Buyer shall be conclusive evidence that the Buyer has examined the Goods and that the Goods are in conformity with the Contract description, in good order and condition, of satisfactory quality and fit for any purpose for which they may be required.
15.1. The Seller shall not incur or accept any liability concerning any representation made by the Seller (or made on the Seller's behalf) to the Buyer (or any person acting on behalf of the Buyer) prior to the making of the Contract where such representation was made or given in relation to the Conditions.
15.2. The Seller shall not accept any liability to the Buyer concerning any express term or provision of this Agreement where such a term relates to the Conditions.
15.3. All terms, conditions or warranties implied by statutory or common law relating to the Conditions are excluded from the Agreement to the fullest extent permitted by law.
15.4. The 'Conditions' shall mean:
15.5. the correspondence of the goods with any description; and/or
15.6. the quality of the goods; and/or
15.7. the fitness of the goods for any purpose(s) whatsoever (whether made known to the Seller or not).
15.8. Some goods are intended primarily for laboratory research purposes as indicated in the Seller's catalogue and other technical literature. Unless otherwise stated on product labels, in the Seller's catalogue or other literature furnished to the Buyer, these goods are not for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or commercial purposes. The Buyer shall indemnify and keep indemnified the Seller against all liabilities and claims which may be made against the Seller by any third party arising from the use or sale of the Goods by the Buyer.
16.1. The Seller's liability under this Clause 16 shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the Goods, and save as provided in this Clause 16 the Seller shall not be under any liability, whether in contract, tort or otherwise, in respect of defects in goods delivered or for any injury (other than personal injury caused by the Seller's negligence as defined in the Unfair Contract Terms Act 1977, section 1), damage or loss resulting from such defects or from any work done in connection therewith.
16.2. The Seller shall not be liable for defective Goods unless the Buyer gives written notice to the Seller within the period of time as specified by the Seller from time to time or within 2 months of delivery (whichever is the shorter) specifying with reasonable detail any matter whereof it is alleged that the Goods are defective.
16.3. The Seller’s liability under Clause 16.2 shall be limited to replacing the defective Goods or (at the Seller’s option) issuing a credit note to the Buyer for a corresponding proportion of the price and the Seller shall not be under any other liability thereunder whatsoever
16.4. No claim will be met by the Seller under Clause 16.2 if, in the opinion of the Seller:-
16.5. the defect is not due solely to defective materials or manufacture; or
16.6. the Goods have been misused or subjected to neglect or carelessness or involved in any accident or adulteration or dealt with contrary to any directions issued by the Seller.
16.7. The warranty contained in this Clause 16 is specifically limited to the Buyer and no warranty is made to any other person, whether subsequent Buyer or user, or to any bailees, licensees, assignees, employees, agent or otherwise.
16.8. The Seller gives no warranty and makes no representation that any sale or use by the Buyer of the Goods will be free from infringement of any patent or other intellectual property right owned or controlled by any third party.
16.9. Neither party shall be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party (a) of an indirect or consequential nature nor (b) for any economic loss or other loss of turnover, profits, business or goodwill.
17.1. Without prejudice to any other right or remedy it might have, either party may terminate the Contract at any time by notice in writing to the other party ('Other Party'), such notice to take effect as specified in the notice:
17.2. if the Other Party is in substantial breach of the Contract and, in the case of a breach capable of remedy within 30 days, the breach is not remedied within 30 days of the Other Party receiving notice specifying the breach and requiring it to be remedied; or
17.3. if the Other Party becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Other Party's assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
18.1. Force majeure
18.2. Neither Party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate the Contract by written notice to the other Party.
18.4. The Contract may only be amended in writing signed by duly authorised representatives of the Parties.
18.6. Neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under the Contract without the prior written consent of the other Party.
18.8. No failure or delay by the Seller in exercising any right, power or privilege under the Contract shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in these Conditions of Sale are cumulative and not exclusive of any rights and remedies provided by law.
18.9. Agency, partnership etc
18.10. The Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Contract. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
18.12. If any provision of these Conditions of Sale is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Conditions of Sale and rendered ineffective as far as possible without modifying the remaining provisions of these Conditions of Sale, and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract.
18.14. In these Conditions of Sale unless the context otherwise requires:
18.15. words importing any gender include every gender;
18.16. words importing the singular number include the plural number and vice versa;
18.17. words importing persons include firms, companies and corporations and vice versa;
18.18. references to numbered clauses and schedules are references to the relevant clause in these Conditions of Sale;
18.19. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
18.20. the headings to the clauses, schedules and paragraphs of these Conditions of Sale are not to affect the interpretation;
18.21. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
18.22. where the word 'including' is used in these Conditions of Sale, it shall be understood as meaning 'including without limitation'.
18.24. Any notice to be given under these Conditions of Sale may be delivered, or be sent by first class pre-paid post addressed to the party to be served at the address for such party last known to the party giving the notice or may be transmitted by fax to the fax number of the party to be served last known to the party giving notice. Notices served by post shall be deemed served 48 hours after posting and notices served by fax and email shall be deemed served 24 hours after the recipient’s fax machine or computer shall have acknowledged receipt.
18.25. Law and jurisdiction
18.26. The validity, construction and performance of the Contract and these Conditions of Sale shall be governed by English law and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings ("Proceedings") which may arise out of or in connection with the Contract provided that nothing contained in the Contract or these Conditions of Sale shall be taken to have limited the right of the Seller to bring Proceedings in any other jurisdiction or jurisdictions whether concurrently or not.