TERMS AND CONDITIONS OF SUPPLY OF CLONES
This document (together with the documents referred to in it)
sets out the terms and conditions on which we supply the biological
material ("CLONES") listed on our website www.lifesciences.sourcebioscience.com
("the Website") to you.
These terms and conditions apply to both CLONES ordered through
the Website and CLONES ordered other than through the Website.
When you place an order with us (whether through the Website or
otherwise) we will provide you with an order number which, by using
the order tracking facility on the Website, you may then use to
track the status of your order from time to time.
Please read these terms and conditions carefully. You should
understand that by ordering any of our CLONES, you agree to be
bound by these terms and conditions.
You should retain a copy of these terms and conditions for
future reference.
Please understand that if you refuse to accept these terms and
conditions and the terms and conditions of the relevant MTA, you
will not be able to order any CLONES from us.
1. INFORMATION
ABOUT US
1.1 www.lifesciences.sourcebioscience.com
is a site operated by Source BioScience UK Limited ("we" "us" or
"our") a company registered in England and Wales under registered
number 4078501 and whose registered office is 1 Orchard
Place, Nottingham Business Park, Nottingham NG8 6PX.
2.
INTERPRETATION
2.1 In these conditions of
supply the following words will (unless the context otherwise
requires) have the following meanings:
"Conditions" the conditions set out below and
overleaf (which incorporate the terms of the relevant MTA);
"Contract" the contract between us and you for
the supply of the CLONES comprising these Conditions and any
documents referred to in them (including, for the avoidance of
doubt, the provisions of the relevant MTA);
"MTA" the Materials Transfer Agreement(s) which
you and your Researchers are subject to in respect of use of the
CLONES supplied by us to you and which you have accepted;
"CLONES" means the biological material supplied
(subject always to the relevant MTA) by us to you from time to
time;
"Researcher" a person employed by you who
carries out research on your behalf and who utilises the
Materials;
"you" / "your" the company,
academic institution, firm, body or any representative thereof or
any other person who orders the CLONES.
2.2 Any reference in these
Conditions to "writing" or cognate expressions includes a reference
to facsimile transmission, email or comparable means of
communication.
2.3. The headings are for
reference only and will not affect the interpretation of these
Conditions.
2.4 We reserve the right at
any time without liability to correct any clerical, typographical
or other similar errors or omissions made by us.
2.5 References to statutes
or statutory instruments shall be deemed to be references to those
statutes or statutory instruments as the same may be amended or
re-enacted from time to time.
3. APPLICATION
OF TERMS
3.1 Subject to clause 3.3,
the Contract shall be on these Conditions and they will govern the
provision of the CLONES to the exclusion of all other terms and
conditions (including any terms or conditions which you purport to
apply under any purchase order, confirmation of order,
specification or other document). Where you are ordering the CLONES
through the Website and you click on the button marked "I Accept"
and thereafter submit your order, or accept (or use) the CLONES,
you will be deemed to accept these Conditions.
3.2 No terms, conditions or
warranties endorsed upon, delivered with, referred to or stipulated
or contained in any purchase order or other similar document
delivered or sent by you to us will form part of the Contract.
3.3 No variation to, waiver
of or addition to these Conditions will have any effect unless it
is expressly agreed in writing and contains a specific reference to
these Conditions. You acknowledge that you have not relied on any
statement, promise or representation made or given by, or on behalf
of, us which is not set out in the Contract. Nothing in this clause
shall limit or exclude our liability for fraudulent
misrepresentation.
3.4 You acknowledge that we
are distributing the CLONES subject to a license from the
beneficial owner of the CLONES. All sales of the CLONES shall be on
these Conditions which incorporate the terms of the relevant MTA.
The relevant MTA is as attached or where you are placing an
order through the Website can be found on our MTA page www.lifesciences.sourcebioscience.com/clone-products/material-transfer-agreements.aspx
Where you are ordering the CLONES through the Website and
thereafter have submitted your order, you will be understood to
have accepted the terms and conditions of the relevant MTA.
3.5 You
must ensure that the content of your order for CLONES is complete
and accurate and that you have provided us with a valid Purchase
Order Number in the compulsory box.
4. SERVICE
AVAILABILITY
The terms of some MTAs prohibit us from accepting orders from
certain countries ("Non-Serviced Countries"). These restrictions
can be found on our Non-Serviced Countries page
www.lifesciences.sourcebioscience.com/clone-products/material-transfer-agreements/non-serviced-countries.aspx.
Please review our Non-Serviced Countries page before ordering
CLONES from us.
5. YOUR STATUS
5.1 You warrant that:
5.1.1 you are legally capable of entering into
binding contracts;
5.1.2 you are at least 18 years old;
5.1.3 you are not contracting as a
consumer;
5.1.4 where applicable, you are not resident
in one of the Non-Serviced Countries; and
5.1.5 where applicable, you are not accessing
the Website from that Non- Serviced Country.
6. HOW THE CONTRACT
IS FORMED BETWEEN YOU AND US
6.1 Each order by you (whether
placed through the Website or placed otherwise than through the
Website) shall be deemed to be a separate offer by you to purchase
the CLONES subject to these Conditions, which we shall be free to
accept or decline at our absolute discretion.
6.2 No order placed by you
shall be deemed to be accepted by us until:
6.2.1 we amend the status of your order via
the order tracking facility on the Website to Received/In Hand;
or
6.2.2 (if earlier) we deliver the CLONES to
you.
7. CANCELLATION
7.1 You may at any time before
the CLONES are dispatched to you amend or cancel an order by
providing us with written notice and if you amend or cancel an
Order, your liability to us shall be limited to payment to us of
all costs we reasonably incur in fulfilling the order until we
receive your amendment or cancellation.
8. THE CLONES
AND YOUR OBLIGATIONS
8.1 All CLONES supplied by
us are for research purposes only and are supplied subject always
to the terms of the relevant MTA.
8.2 You warrant that at all
times you:
8.2.1 are
acting on your own behalf and on no-one else's behalf;
8.2.2 shall not make the CLONES available to,
or allow the use of the CLONES by (or for the benefit of), any
person other than a Researcher carrying out investigation (as
defined in the relevant MTA) and/or legitimate research;
8.2.3 have
obtained all necessary licenses and/or permits in respect of your
possession of and use of the CLONES;
8.2.4
shall comply with all applicable laws and regulations of the
country (in connection with possession and/or use or otherwise) for
which the CLONES are destined;
8.2.5
shall only use the CLONES for the purposes of your investigation
and/or legitimate research;
8.2.6
shall not use the CLONES for diagnostic purposes; and
8.2.7
shall not procure the resale or distribution of the CLONES.
8.3 You
may not use the CLONES other than as specified in clause 8.2
without our prior written consent.
8.4 We
will not be liable for any breach by you of any applicable laws and
regulations of the country for which the CLONES are destined.
8.5 You
shall procure that each of your Researchers shall comply at all
times with the obligations under the Contract. You shall
immediately notify us in the event that you become aware of any
breach in connection with the Contract.
8.6 You shall indemnify us
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 professional costs and expenses) suffered or incurred by
us arising out of or in connection with:
8.6.1 any breach of the warranties contained
in clauses 5.1 and 8.2;
8.6.2 your (or your Researcher(s)') breach or
negligent performance or non-performance of the Contract;
8.6.3 any claim made against us by a third
party arising out of or in connection with the supply of the
CLONES, to the extent that such claim arises out of the breach,
negligent performance or failure or delay in performance of the
Contract by you or your Researchers; and
8.6.4 any claim made against us by a third
party for death, personal injury or damage to property arising out
of or in connection with defective CLONES, to the extent that the
defect in the CLONES is attributable to the acts or omissions of
you or your Researchers.
8.7 The indemnity in clause
8.6 shall apply whether or not we have been negligent or at
fault.
8.8 If any third party makes
a claim, or notifies an intention to make a claim, against us which
may reasonably be considered likely to give rise to a liability
under clause 8.6 ("a Claim"), we shall:
8.8.1 as soon as reasonably practicable, give
written notice of the Claim to you, specifying the nature of the
Claim in reasonable detail;
8.8.2 not make any admission of liability,
agreement or compromise in relation to the Claim without your prior
written consent (such consent not to be unreasonably conditioned,
withheld or delayed), provided that we may settle the Claim (after
giving prior written notice of the terms of settlement (to the
extent legally possible) to you, but without obtaining your
consent) if we reasonably believes that failure to settle the Claim
would be prejudicial to it in any material respect;
8.8.3 give you and your professional advisers
access at reasonable times (on reasonable prior notice) to its
premises and its officers, directors, employees, agents,
representatives or advisers, and to any relevant assets, accounts,
documents and records within our power or control, so as to enable
your and your professional advisers to examine them and to take
copies (at your expense) for the purpose of assessing the Claim;
and
8.8.4 subject to you providing us security to
our reasonable satisfaction against any claim, liability, costs,
expenses, damages or losses which may be incurred, take such action
as you may reasonably request to avoid, dispute, compromise or
defend the Claim.
8.5 Where there is a
conflict between any of the provisions of these Conditions and the
provisions of the relevant MTA, the provisions of the MTA will
prevail.
9.
DESCRIPTION
9.1 All samples, drawings,
descriptive matter, specifications and advertising issued by us and
any descriptions or illustrations contained in our catalogues or
brochures or displayed on the Website are issued or published for
the sole purpose of giving an approximate idea of the CLONES
described in them. They shall not form part of the Contract.
10. DELIVERY
10.1 Any times specified or agreed
by us for the delivery of the CLONES are given in good faith but
are intended to be an estimate only and time for delivery shall not
be made of the essence by notice. If no time is specified or agreed
by us delivery will take place within a reasonable time of the date
your order is deemed to be accepted by us pursuant to clause
6.2. We will not be liable for any direct, indirect or
consequential loss (all three of which terms include, without
limitation, pure economic loss, loss of profits, loss of business,
depletion of goodwill and similar loss) costs, damages, charges or
expenses caused directly or indirectly by any delay in the delivery
of the CLONES (even if caused by our negligence), nor shall any
delay entitle us to terminate or rescind the Contract unless such
delay exceeds 180 days.
10.2 We may deliver the CLONES by
separate instalments. Each separate instalment shall be invoiced
and paid for in accordance with the provisions of the Contract.
10.3 Each instalment shall be a
separate Contract and no cancellation or termination of any one
Contract relating to an instalment shall entitle you to repudiate
or cancel any other Contract or instalment.
11. RISK AND TITLE
11.1 The CLONES will be at your risk
from the time of delivery.
11.2 Ownership of the CLONES will only
pass to you when we receive full payment of all sums due in respect
of the CLONES, including delivery charges.
12. PRICE AND PAYMENT
12.1 Unless expressly agreed
otherwise in writing by us, the CLONES are supplied by reference to
our price list published by us on the Website from time to time,
except in the case of obvious error.
12.2 Subject to this clause 12.2,
all prices are exclusive of VAT, which sum shall be added to the
invoice and shall be payable by you. UK VAT is applicable to
transactions within the European Union including the UK. For EU
based organisations, registered outside the UK, supply of a valid
VAT registration number is required, if you are to avoid UK VAT.
Eligible bodies in the UK may qualify for zero rating under VATA
1994, Schedule 8, Group 15. Such organisations should check their
eligibility status carefully and only supply a certificate where
they are fully satisfied that zero-rating applies. We reserve the
right to charge VAT to you where you do not provide a valid
zero-rating certificate or where instructed to do so by HMRC.
12.3 All prices are
exclusive of delivery costs, which shall be added to the total
amount due as set out on the Website.
12.4 The Website contains a large number
of CLONES and it is always possible that, despite our best efforts,
some of the CLONES listed on the Website may be incorrectly priced.
We will normally verify prices as part of our dispatch procedures
so that, where a Product's correct price is less than our stated
price, we will charge the lower amount when dispatching the Product
to you. If a Product's correct price is higher than the price
stated on the Website, we will normally, at our discretion, either
contact you for instructions before dispatching the Product, or
reject your order and notify you of such rejection.
12.5 We are under no
obligation to provide the Product to you at the incorrect (lower)
price, even after your order is deemed to accepted by us pursuant
to clause 6.2, if the pricing error is obvious and unmistakeable
and could have reasonably been recognised by you as a
mispricing.
12.6 If you order CLONES for
delivery outside the United Kingdom, they may be subject to import
duties and taxes which are levied when the delivery reaches the
specified destination. You will be responsible for payment of any
such import duties and taxes. Please note that we have no control
over these charges and cannot predict their amount. Please contact
your local customs office for further information before placing
your order.
12.7 Payment for all
CLONES will be due in pounds sterling and will be paid by you by
such payment method as we shall, at our discretion, determine
including without limitation payment by way of credit or debit card
or upon receipt of our invoice. Where payment is made by credit or
debit card we will not charge your credit or debit card until we
dispatch your order.
12.8 In respect of payment:
12.8.1 where payment is made otherwise than by
credit or debit card, you shall pay the prices for the CLONES
within 30 days of receipt of an invoice from us;
12.8.2 no payment will be deemed to have been
received until we have received the payment in full in cleared
funds. Time for payment will be of the essence of the
Contract;
12.8.3 all payments payable to us under the Contract
will become due immediately on termination of the Contract despite
any other provision of these Conditions;
12.8.4 you will make all payments due under the
Contract without any deduction whether by way of set-off,
counterclaim, discount, abatement or otherwise; and
12.8.5 if you fail to pay us any sum due pursuant to
the Contract, then without prejudice to our other rights and
remedies you shall pay interest at 2% over LIBOR to us on such sum
from the due date for payment at the statutory rate from time to
time in force accruing on a daily basis until payment is made in
full (whether before or after any judgement).
13.
WARRANTIES
13.1 We warrant to you
that (subject always to the other provisions of these
Conditions), on delivery, the CLONES shall:
13.1.1
be of satisfactory quality; and
13.1.2
be reasonably fit for any particular purpose for which the CLONES
are being bought, provided that you have made known that purpose to
us and we have confirmed that it is reasonable for you to rely on
our skill and judgment.
13.2 You acknowledge that there is
a risk that a proportion of the CLONES supplied by us may not
conform to the description provided by us to you (if any) and/or
may be contaminated and you accept that this is inevitable given
the nature of the CLONES. We shall have no liability of any kind
where the Product(s) does not conform with any such description
and/or where the Product(s) is contaminated, for whatever
reason.
13.3 We shall not be liable for a
breach of any of the warranties in clause 13.1 unless:
13.3.1 you give
written notice of the defect to us within three calendar months
from your receipt of the Product; and
13.3.2 we are
given a reasonable opportunity after receiving the notice of
examining such CLONES and you (if asked to do so by us) return such
CLONES to our place of business at our cost for the examination to
take place there.
13.4 We shall not be liable for a
breach of any of the warranties in clause 13.1 if:
13.4.1 you (or
any of your Researchers) make any further use of such CLONES after
giving such notice; or
13.4.2 the
defect arises because you fail follow our oral or written
instructions as to the storage, installation, use or maintenance of
the CLONES or (if there are none) good industry practice.
13.5 Subject to clauses 13.2, 13.3
and 13.4, if any of the CLONES do not conform with any of the
warranties in clause 13.1, we shall at our own option replace such
CLONES or refund the price of such CLONES at the pro rata Contract
rate provided that, if we so request, you shall, at our expense,
return the CLONES.
13.6 We will not be liable for a
breach of any of the warranties in clause 13.1 where and to the
extent that a defect arises as a result of your negligence.
13.7 If we comply with
clause 13.5 we shall have no further liability (in contract, tort
(including, without limitation, negligence) or otherwise) for
breach of any of the warranties in clause 13.1 in respect of such
CLONES.
13.8 Our obligations
to replace the CLONES or refund the price of such CLONES under 13.5
shall not apply to any replacement CLONES supplied by us.
14
LIMITATION OF LIABILITY
14.1 Save for the warranties given
by us at clause 13.1, all warranties, conditions and other terms
(whether implied by statute or otherwise) are, to the fullest
extent permitted by law, excluded from the Contract.
14.2Nothing in these Conditions excludes or limits our
liability:
14.2.1 for fraud or fraudulent
misrepresentation;
14.2.2 for any death or personal injury caused
by our negligence; or
14.2.3 for any matter which it would be
illegal for us to exclude or attempt to exclude our liability.
14.3 Subject to clause
14.2, we will not be liable to you in contract, tort (including,
without limitation, negligence), misrepresentation or otherwise for
any:
14.3.1 economic loss
of any kind (including, without limitation, loss of use, profit,
anticipated profit, business, contracts, overhead recovery, revenue
or anticipated savings);
14.3.2 any damage to your reputation or
goodwill: or
14.3.3 any other special, indirect or
consequential loss or damage
(even if we have been advised of such loss or damage) arising
out of or in connection with the Contract.
14.4 Subject to the
provisions of clause 14.2, our total liability in contract, tort
(including, without limitation, negligence), misrepresentation or
otherwise arising out of or in connection with the Contract will be
limited to the Contract price.
14.5 The provisions of
this clause 14 shall survive the termination or expiry (for
whatever reason) of the Contract.
15 CONFIDENTIALITY
15.1 Each of you and us shall keep
strictly confidential all information concerning the business and
affairs of the other obtained from the other either pursuant to the
Contract or prior to and in contemplation of it, shall use the same
exclusively for the purposes of the Contract, and shall disclose
the same only to those of its directors and employees to whom and
to the extent that such disclosure is reasonably necessary for the
purposes of the Contract.
15.2 The obligations
of clause 15.1 above shall survive the termination of the Contract
but shall not apply to any information which:-
15.2.1 the recipient can demonstrate was already in
its possession and at its free disposal prior to receipt under the
circumstances mentioned at clause 15.1 above;
15.2.2 is subsequently disclosed to the recipient
without any obligation of confidence by a third party who has not
derived it directly or indirectly from the disclosing party; or
15.2.3 enters the public domain through no act or
default of the recipient, its agents or employees.
15.3 You will keep us
indemnified in full against all liability, loss, damage, claim,
action, demand, expense or proceeding in respect of any breach by
you of your obligations set out in the provisions of clause
15.1.
16
DATA PROTECTION
16.1 We agree that we shall only
process your personal data (as defined in the Data Protection Act
1998 ("DPA"), and all regulations, codes of
practice and guidance notes made thereunder and all subsequent
amending or secondary legislation or orders) for the purposes of
performing our obligations under the Contract and we will at all
times process your personal data in accordance with the DPA and
will take all reasonable security measures as are required to
ensure our compliance with the DPA.
17 INTELLECTUAL PROPERTY RIGHTS
17.1 You will keep us indemnified
in full against all liability, loss, damage, claim, action, demand,
expense or proceeding in respect of any infringement or alleged
infringement of any third party intellectual property rights
resulting from any compliance by us with your instructions, whether
express or implied.
17.2 You understand
and accept that nothing within the Contract shall operate to
transfer any intellectual property rights of the beneficial owner
of the CLONES to you.
18 TERMINATION
18.1 Without prejudice to the
foregoing, we may terminate the Contract immediately if:
18.1.1 you fail to pay the price
on the due date;
18.1.2 you are in breach of any
term of the Contract and have failed to remedy such breach within
28 days of receipt of written notice specifying the breach and
requiring it to be remedied;
18.1.3 there is a material change
in the ownership or control of you; or
18.1.4 you are wound up or become
insolvent or have a receiver or administrative receiver appointed
or suffer the appointment or the presentation of a petition for the
appointment of an administration or any equivalent or analogous
event occurs in any other jurisdiction.
18.2 The termination
of the Contract (howsoever arising) will be without prejudice to
any rights and remedies which may have accrued to either party.
18.3 Any Conditions
which impliedly have effect after termination or expiry will
continue to be enforceable notwithstanding termination or
expiry.
19 FORCE MAJEURE
We will not be liable to you, or be deemed to be in breach of
these Conditions, by reason of any delay in performing or failure
to perform any of our obligations under these Conditions if such
delay or failure is caused by events outside of our reasonable
control including, without limitation, acts of God, government
actions, war or national emergency, acts of terrorism, protests,
riot, fire, explosion, flood, strikes or other industrial action of
whatever nature. If we are unable to perform our obligations
under these Conditions we will promptly notify you of the nature
and extent of the circumstances in question. Our performance under
any Contract is deemed to be suspended for the period that the
event in question continues, and we will have an extension of time
for performance for the duration of that period.
20 GENERAL
20.1 You not without our prior
written consent assign or transfer the Contract or any part of it
to any other person.
20.2 We may without
your prior written consent assign, transfer or subcontract the
Contract or any part of it to any other person.
20.3 Each of rights or
remedies under these Conditions are without prejudice to any other
right or remedy which we may have under these Conditions or
otherwise.
20.4 Reference to, and
acknowledgement of, us will be made in any resulting publication
involving information generated by us. Acknowledgements can
be incorporated into the body of the paper but should use our
standard text: "genomic products were provided by Source BioScience
UK Limited (www.sourcebioscience.com)".
20.5 Applicable laws
require that some of the information or communications we send to
you should be in writing. When placing orders through the Website,
you accept that communication with us will be mainly electronic. We
will contact you by e-mail or provide you with information by
posting notices on the Website. For contractual purposes, you agree
to this electronic means of communication and you acknowledge that
all contracts, notices, information and other communications that
we provide to you electronically comply with any legal requirement
that such communications be in writing. This condition does not
affect your statutory rights.
20.6 All notices given
by you to us must be given to Source BioScience UK Limited at 1
Orchard Place, Nottingham Business Park, Nottingham, NG8 6PX.
We may give notice to you at either the e-mail or postal address
you provide to us when placing an order, or in any of the ways
specified in clause 20.5 above. Notice will be deemed received and
properly served immediately when posted on the Website,
24 hours after an e-mail is sent, or three days after the
date of posting of any letter. In proving the service of any
notice, it will be sufficient to prove, in the case of a letter,
that such letter was properly addressed, stamped and placed in the
post and, in the case of an e-mail, that such e-mail was sent to
the specified e-mail address of the addressee.
20.7 If any provision
of the Contract is found by any court, tribunal or administrative
body of competent jurisdiction to be wholly or partly illegal,
invalid, void, unenforceable or unreasonable it will, to the extent
of such illegality, invalidity, voidness, unenforceability or
unreasonableness, be deemed severable and the remaining provisions
of the Contract shall continue in full force and effect to the
fullest extent permitted by law.
20.8 Failure or delay
by us in exercising any right or remedy provided by the Contract or
by law will not be construed as a waiver of such right or remedy or
a waiver of any other right or remedy.
20.9 A person who is
not a party to the Contract will have no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of the
Contract.
20.10 These Conditions and any document
expressly referred to in them (including for the avoidance of doubt
the provisions of the relevant MTA) represent the entire agreement
between us in relation to the subject matter of any Contract and
supersede any prior agreement, understanding or arrangement between
us, whether oral or in writing.
20.11 We each acknowledge that, in
entering into a Contract, neither of us has relied on any
representation, undertaking or promise given by the other or be
implied from anything said or written in negotiations between us
prior to such Contract except as expressly stated in these
Conditions.
20.12 Neither of us shall have any
remedy in respect of any untrue statement made by the other,
whether orally or in writing, prior to the date of any Contract
(unless such untrue statement was made fraudulently) and the other
party's only remedy shall be for breach of contract as provided in
these Conditions.
20.13 We have the right to revise and
amend these Conditions from time to time. You will be subject to
the policies and Conditions in force at the time that you order
CLONES from us, unless any change to those policies or these
Conditions is required to be made by law or governmental authority
(in which case it will apply to orders previously placed by you),
or if we notify you of the change to those policies or these
Conditions before we are deemed to have accepted your order
pursuant to clause 6.2 (in which case we have the right to assume
that you have accepted the change to the Conditions, unless you
notify us to the contrary within seven working days of receipt
by you of the CLONES).
20.14 The Contract and any dispute or
claim arising out of or in connection with it or its subject matter
of formation (including non-contractual disputes or claims) will be
governed by English law. Any dispute or claim arising out of or in
connection with the Contract or its formation (including
non-contractual disputes or claims) shall be subject to the
non-exclusive jurisdiction of the English courts.
June 2010