NEW ENGLAND BIOLABS (U.K.) LIMITED - TERMS AND CONDITIONS OF SALE
1 DEFINITIONS AND INTERPRETATION
1.1 These New England Biolabs (U.K.) Limited - Terms and Conditions of Sale (“Conditions”) are the terms and conditions under which New England Biolabs (U.K.) Limited (Company Number 02833761) (“NEB”), an affiliate of New England Biolabs, Inc., sells products, services, and/or products resulting from services (collectively, “products”) to you, either directly or indirectly through its affiliates, and these Conditions will govern all of your product orders to and purchases from NEB. These Conditions, including all documents incorporated herein by reference, any quotation and related documents issued to you from NEB or its affiliates, and those specific terms of a purchase order or other document that are either consistent with these Conditions or expressly agreed upon by NEB in writing, constitute the entire contract between NEB and you relating to the subject matter hereof (the “Contract”), and supersede all prior agreements and understandings between NEB and you, whether written or oral. In the event of a conflict, a quotation and other related documents issued to you from NEB or its affiliates takes precedence over these Conditions, and a written contract covering the same subject matter signed by NEB and you takes precedence over both.
1.2 In these Conditions unless the context otherwise requires headings are used for convenience only and shall not affect their interpretation; references to persons include incorporated and unincorporated persons; references to the singular include the plural and vice versa and references to clauses mean the clauses in these Conditions.
2 ORDER FULFILLMENT
2.1 Subject to any variation under clause 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions, whether express or implied, written or verbal (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions alluded to, delivered with or contained in your purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract or submitted by you to NEB whether deliberately or incidentally. Moreover, any failure by NEB to reject any such other terms or conditions expressly will not constitute an acceptance of them or waiver of these Conditions.
2.3 These Conditions apply to all NEB sales of products and any variation to these Conditions and any representation concerning the products (whether written or verbal, including in any instructional, marketing or promotional material) shall have no effect unless expressly agreed in writing and signed by a director or other authorised representative of NEB, provided that nothing in this clause will exclude or limit NEB’s liability for fraudulent misrepresentation.
2.4 Each order for products submitted by you to NEB shall be deemed to be an offer by you to purchase products subject to these Conditions.
2.5 All orders are subject to acceptance and availability and NEB shall not be obliged to accept any order. No order placed by you shall be deemed accepted by NEB until a written or e-mail acknowledgement of order is issued by NEB or (if earlier) NEB delivers the products to you.
2.6 You must ensure that the terms of your order are complete and accurate.
2.7 You confirm that you are acting in the course of business and are not ordering the products as a consumer as such term is defined in the Consumer Protection Act 1986.
2.8 Any quotation issued by NEB is given on the basis that no contract will exist until NEB dispatches an acknowledgement of order to you. Unless otherwise agreed in writing, any quotation is valid for a period of 30 days only from its date, provided that NEB has not previously withdrawn it.
2.9 NEB cannot guarantee that the products will be available when ordered.
2.10 You acknowledge that products, software and/or technology received from NEB are subject to the export control laws and regulations of the United States (“US”), England and Wales and any other applicable laws of the countries involved in the sale of such products, software and/or technology under this Contract. You represent and warrant that you will not, directly or indirectly, without obtaining prior authorisation from competent government authorities where required by such laws and regulations: (a) sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, and/or technology (including products derived from or based on such technology) received from NEB to (i) any destination, entity, or person subject to an embargo or destination-based export restriction under applicable laws or regulations of the US or England and Wales, (ii) any entity or person prohibited from receiving the products, software and/or technology subject to a denial order or sanction, including but not limited to those parties identified on the Consolidated List which can be searched at https://legacy.export.gov/csl-search, or (iii) any destination for any end use prohibited by applicable law, including but not limited to activities involving the development, production, use or stockpiling of nuclear, missile, or chemical or biological weapons or precursors; or (b) engage in any activity or transaction involving a product, software and/or technology received from NEB by way of any shipment, use or otherwise, in violation of the laws or regulations of the US, England and Wales, and/or your local jurisdiction.
2.11 You represent and warrant you will comply with all applicable laws and regulations relating to bribery and corruption, including but not limited to the US Foreign Corrupt Practices Act and the UK Bribery Act. Without limiting the generality of the foregoing, you represent and warrant that you will not pay money or provide anything of value to any government official and/or anyone acting in a commercial context in violation of bribery or corruption laws or regulations applicable to your business activity.
3 ORDERS AND DELIVERY
3.1 Any changes that you propose to any order accepted by NEB according to the terms of clause 2.5, including changes to quantities, method of shipment, scope, schedule or place of delivery of products, must be provided to NEB in writing and may be accepted by NEB in writing at its sole discretion.
3.2 Delivery shall be made to the address specified in your order. NEB will, unless otherwise stated, arrange carriage and freight (as the case may be) and, if requested in writing by you, insurance against loss or damage in transit. Risk in the products will pass to you at the time of delivery or if you, your servant or your agent fails to take delivery of the products, at the time when NEB has tendered delivery of the products.
3.3 NEB may make delivery by installments, in which case all such installments may be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of, or any other breach affecting, any installment shall not relieve you of your obligations to accept subsequent deliveries.
3.4 Immediately upon receiving any products, you shall inspect the same and shall notify NEB Customer Support in writing at customersupport.uk@neb.com of any claims for shortages, defects or damage and shall hold the products pending NEB’s written instructions. When you contact NEB Customer Support, NEB will give you instructions on returning any defective or damaged products and on product replacements; however, you must return any such products not later than 14 days after delivery by NEB, and, unless otherwise directed by NEB, in accordance with clause 4.1. If you fail to so notify NEB within 5 working days after the products have been received by you, such products shall conclusively be deemed to conform to the Contract and to have been irrevocably accepted by you.
3.5 Although NEB shall use reasonable efforts to meet the anticipated delivery date, any such date is an estimate only and accordingly time for delivery shall not be of the essence. NEB shall not be liable (in contract, tort, or otherwise) for any losses, expenses, claims, or damages caused by a late delivery.
3.6 Acceptance and completion of orders are subject to NEB possessing all necessary consents, licences, authorisations and approvals required for the purpose of the supply of the products (“Consents”). If at any time NEB is not in possession of any Consents, it shall be entitled (without liability to you) to cancel the Contract by written notice.
3.7 NEB shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond NEB’s reasonable control, including, without limitation, any act of or failure to act by you, downtime or failure of any third party web portal through which NEB advertises, sells or invoices products (“Portal”), embargo or other governmental act, any law, regulation, investigation or audit affecting NEB’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other industrial issues, lightning, flood, storm or other acts of God, pandemic or epidemic, delay in transportation, or inability to obtain necessary personnel, fuel, materials supplies or facilities.
4 RETURNS
4.1 Authorisation for all product returns must be approved by NEB Customer Support and a returned material authorisation number given to you prior to the return of products. Not all products will be authorised for return, including, without limitation, due to temperature, packing, or other requirements. Products authorised for return must arrive at NEB’s facilities in a state satisfactory for resale to be eligible for product credit. For you to be eligible to receive a refund or product credit for an authorised return, the product must be returned no later than 14 days after delivery:4.1.1 with both products and all packaging in their original condition;
4.1.2 securely wrapped;
4.1.3 including NEB’s dispatch note;
4.1.4 at your risk and cost using a registered method of delivery;
4.1.5 fully in compliance with the shipping conditions submitted to you; and
4.1.6 if so requested by NEB, accompanied by a decontamination certificate.
5 TAXES AND OTHER CHARGES
5.1 Any value added tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, arising out of or in connection with the sale of the products shall be paid by you. If NEB is required to pay any such sum you shall reimburse NEB promptly on demand or, when submitting your order, submit an exemption certificate or other document acceptable to the authority imposing the payment.
6 PRICE AND PAYMENT
6.1 If NEB does not provide you with a written quotation or if the product price is not specified in a written contract between NEB and you, the product price will be the list price that applies on the date NEB receives your order. Product prices are subject to change from time to time. Product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If applicable, insurance against loss or damage in transit, shipping and carriage charges will be invoiced in addition and show as separate items on the invoice.
6.2 Payment for the products must be made in the manner required by NEB at the time of your order. Unless clause 6.3 applies, payment must be received in full before products are shipped.
6.3 If you have a credit account with NEB, you may elect to pay by invoice. In such event:
6.3.1 a valid and approved purchase order number from you must be provided with the order;
6.3.2 products will only be dispatched if the credit account is in good standing having not exceeded any credit limit set by NEB;
6.3.3 payment of the price of the products is due 30 days after the date of invoice, unless otherwise stated. Time of payment shall be of the essence. If any sum remains unpaid in full by its due date:
(a) you shall pay interest on the outstanding amount, before and after judgment, at a rate of 5% above the then-current base rate of Barclays Bank plc in the UK, calculated annually but accruing on a daily basis ( or such higher rate as is allowed by law);
(b) NEB may without liability to you suspend all further deliveries to you and shall, on written notice, forthwith suspend the credit facility extended under this clause 6.3; and
(c) NEB may exercise its rights under clause 7; and
6.3.4 Payment shall be in the currency nominated by NEB. Where payment is made by bank transfer you shall pay all bank charges (receiver’s as well as remitter’s).
7 RETENTION OF TITLE
7.1 So long as any amounts whatsoever (whether immediately due or not) remain owing from you to NEB, title to and property in any products supplied will remain with NEB and will not pass to you until NEB receives such amounts in full. Until then you shall: (a) hold the products as NEB’s bailee; (b) store them separately and clearly identifiable from other goods in your possession; (c) ensure that no charge, lien or other encumbrance is created over them; (d) promptly deliver them up to NEB upon demand or grant NEB full access to any premises containing them so that they can be recovered; and (e) maintain them in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.7.2 If you have sold or otherwise parted with possession of any of the products before NEB has received payment in full, you shall hold the proceeds of sale (or in the case of payment not having been made the debt owed to you by your buyer) up to the amount or value of your debt to NEB as agent and trustee for NEB and pay it to NEB on demand.
8 WARRANTIES AND LIABILITY
8.1 Save as provided in clause 8.3, unless a different written warranty is included with the product literature or associated documents, NEB warrants that, provided that they are unopened, products shall, until their respective expiration dates (if stated), or up to their respective number of uses, as the case may be, conform materially to the technical specifications for such products. If NEB does not specify an expiration date, number of uses, or warranty period for a product, then NEB warrants that the product will conform materially to the technical specifications for such product for 12 calendar months from delivery. However, NEB reserves the right without notice to vary product specifications or make changes that affect a product’s form, fit, or function at any time in NEB’s sole discretion. The warranty in this clause 8.1 extends only to you. To claim under the warranty you must inform NEB in writing within 14 days of discovering the defect and return the products in question to NEB.
8.2 NEB shall not be liable under the warranty in clause 8.1 if the products or their packaging suffer deliberate or accidental damage, if they have not been stored in accordance with the instructions contained in the delivery note, if you have misused the products in any manner, have failed to use, store or transport the products in accordance with industry standards and practices, have failed to use the products in accordance with any instructions given by NEB or these Conditions, or fail to comply with any delivery conditions, or if a third party does any of the aforesaid.
8.3 Subject to clause 9.1, NEB’s sole and exclusive liability and your sole and exclusive remedy if a product proves to be defective or non-conforming to the warranty in clause 8.1 shall be, at NEB’s discretion, replacement of such product without charge or a refund of the purchase price paid for such product.
8.4 EXCEPT FOR THE WARRANTIES SET FORTH IN CLAUSE 8.1, NEB MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; or (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY NEB, OR ANY OTHER PERSON ON NEB'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN CLAUSE 8.1. IF WE OR OUR AFFILIATE MANUFACTURES CUSTOM PRODUCTS FOR YOU BASED ON INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS YOU PROVIDE TO US OR SUCH AFFILIATE, WE AND OUR AFFILIATES WILL NOT BE LIABLE FOR THE LACK OF SUFFICIENCY, FITNESS FOR PURPOSE, INFRINGEMENT, OR QUALITY OF THE PRODUCTS TO THE EXTENT ATTRIBUTABLE TO SUCH INSTRUCTIONS, SPECIFICATIONS, OR OTHER DIRECTIONS.
9 LIABILITY
9.1 Save in the case of any liability which may not be limited or excluded by law, including liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation (and all provisions purporting to limit or exclude liability in these Conditions are subject to such proviso):
(a) NEB’s and its affiliates’ aggregate liability under any legal theory (including but not limited to contract, negligence, strict liability in tort or warranty of any kind) arising out of or in connection with any Contract or any product or the provision thereof, whether arising out of or related to breach of contract, tort (including negligence), breach of statutory duty, restitution or otherwise, is limited to the amount paid by you to NEB for the product in connection with which such liability is alleged to have arisen; and
(b) NEB and its affiliates shall be in no manner liable for any indirect, special, incidental, punitive, multiple, exemplary or consequential loss, including without limitation loss of business or goodwill, loss under current or future contracts, loss of profits or revenue, costs of cover, loss of use or corruption of software, data or information, economic loss, loss of anticipated savings, disaster recovery costs or administrative costs, that you may incur or that may arise from any Contract or in connection with the products or the provision thereof, even if NEB has been advised of the likelihood of any of the aforesaid applying.
9.2 Subject to clause 9.1, NEB and its affiliates shall be in no manner liable for how you use the products or for any loss or liability arising out of or in connection with reliance on results generated from tests using them.
10 INDEMNITY
10.1 To the extent allowed by applicable law, and except where a claim arises as a result of NEB’s gross negligence or willful misconduct or that of its affiliates, you agree to indemnify, defend and hold harmless NEB and its affiliates, and its and its affiliates’ employees, agents, distributors, successors, officers, directors, licensees, subcontractors and assigns (each an “Indemnified Party”), from and against any and all damages, claims, demands, liabilities, costs and expenses (including reasonable legal fees) that an Indemnified Party may incur arising out of or in connection with (a) your acts or omissions or your use or modification of a product, (b) NEB’s or its affiliates’ manufacture or sale of a product NEB or its affiliates make under your instructions, specifications, or other directions, (c) your failure to comply with the Contract, (d) your failure to acquire any applicable additional rights related to your use of the products, (e) your breach of any applicable law or regulation, or (f) NEB’s or its affiliates’ use of materials you provide to NEB or its affiliates or of third-party materials NEB or its affiliates acquire at your request.
11 USE OF PRODUCTS
11.1 Except as otherwise agreed in writing by our authorised representative, the products are intended for laboratory research purposes only (and as may be further detailed in the limited use statement or limited label licence on them) and, unless otherwise stated on product labels, in NEB’s catalogue, on NEB’s website, or in other materials supplied to you by NEB, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes or in foods, food supplements, beverages, medicinal products, medical devices or cosmetics for humans or animals (whether ex vivo or in vivo) or for commercial purposes (“Precluded Uses”).
11.2 You furthermore undertake to properly test and use the products in compliance with all relevant legal, regulatory and ethical requirements and with the applicable Safety Data Sheets (“SDSs”), which are available electronically on NEB’s website for products available in NEB’s catalogue, or in paper copy by contacting NEB, as applicable.
11.3 You are solely responsible for making sure that the way you use the products complies with applicable laws, regulations and governmental policies and for obtaining at your own expense all necessary approvals, intellectual property rights, licences, certifications, credentials, permits and permissions that you may need related to your use. It is your responsibility to properly test, use, and, to the extent authorised, market any products and any final articles made from them in accordance with the practices of a technically qualified individual and in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted. It is solely your responsibility to make sure the products are suitable for your particular use and to conduct any research necessary to learn the hazards involved for any of your uses of products. You also have the duty and obligation to warn your customers, employees and any auxiliary personnel of any risks involved in using or handling the products. You agree to comply with instructions for use of the products, if any, and not to misuse the products. To the extent authorised by NEB, if the products are to be repackaged, relabeled or used as starting materials or components of other products by you, you will verify NEB’s assay of the products, qualify the products for such applications, and comply with all governmental requirements relating to labeling or providing other communications to customers.
11.4 You may not perform compositional, structural, functional or other analysis of the products, or undertake deconvolution or reverse engineering with respect to the products.
12 INTELLECTUAL PROPERTY
12.1. You acknowledge and agree that all intellectual property rights in NEB’s and its affiliates’ products and in any of NEB’s and its affiliates’ technology, intellectual property and know-how used to make or provide, or useful for the manufacture or use of, the products will at all times remain vested, as applicable, in NEB, its affiliates and its and their licensors. Unless otherwise expressly agreed in writing by NEB’s authorised representative, your purchase of the products only grants you a limited, non-exclusive, non-transferable, non-sub-licensable right to use the quantity of the products purchased for internal research purposes only, and in compliance with the applicable intended use statement, limited use statement or limited label license, if any, on NEB’s website or on the label or other documentation accompanying the products (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). Your purchase of products does not carry any license to use NEB’s or its affiliates’ trademarks or names. No right to resell the products or any of their components is conveyed expressly, by implication, or by estoppel. Unless otherwise expressly agreed in writing by NEB’s authorised representative, NEB provides no rights to use the products in commercial applications of any kind, including, without limitation, manufacturing, quality control or commercial services such as reporting the results of your activities for a fee or other form of consideration. It is solely your responsibility to determine whether you may be required to obtain any additional or third party intellectual property rights depending upon the particular application in which you use the product. If you need commercial use rights to the products (including the right to perform fee-for-services), please contact NEB’s Global Business Development department at busdev@neb.com.
13 YOUR INFORMATION
13.1 You warrant that you have provided, and will continue to provide promptly as and when necessary, accurate, up to date and complete information including (without limitation) billing address, delivery address and contact details for you and your key personnel.
13.2 If you purchase products via NEB’s website or a Portal, you shall comply with any additional contractual terms in connection therewith and keep your password and other log-in details confidential. NEB shall be in no manner liable for any loss or liability arising out of or in connection with unauthorised personnel or third parties accessing your account unless caused by NEB’s gross negligence or willful misconduct.
13.3 NEB may without liability to you deny you access to any NEB website account of yours.
14 GENERAL
14.1 NEB’s failure to enforce any term or condition of or exercise any of its rights under the Contract shall not preclude it from subsequently enforcing any such terms or condition or exercising such right.
14.2 All rights and remedies of NEB under the Contract are cumulative and are in addition to any other rights and remedies of NEB at law or in equity.
14.3 If any of these Conditions is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
14.4 The Contract shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, representatives, successors and assigns.
14.3 In all other respects, the Contract is not for the benefit of any third party and none of these Conditions will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 or any foreign equivalent legislation by any person that is not a party to it.
14.4 You may not assign, transfer, sub-license, delegate or subcontract the Contract or any part of it without the prior written consent of NEB.
14.5 NEB may assign, transfer, delegate, transfer, sub-license or delegate the Contract or any part of it.
14.6 Day to day communications between the parties may be by telephone. However, formal notices under the Contract must be served by email, facsimile or registered post (air mail into or out of the UK) to the recipient party's email address, fax number or postal address as given in NEB's order confirmation and shall be deemed received:
(a) in the case of fax, when sent, subject to there being evidence of successful transmission;
(b) in the case of post within the UK, 2 business days after posting;
(c) in the case of air mail, 7 business days after posting; and
(d) in the case of email, at the time of transmission or, if this time falls outside usual business hours of in the place of receipt, when business hours in the place of receipt resumes.
14.7 You will keep confidential any non-public technical information, commercial information (including, without limitation, prices) or instructions received from NEB as a result of discussions, negotiations or other communications between NEB and you in relation to the products or the provision thereof.
14.8 NEB reserves the right to change or vary these Conditions at any time. Any changes or variations made to these Conditions will not apply to the Contract between NEB and you for any order NEB receives before the changes or variations are made.
15 LAW AND JURISDICTION
15.1 The place of performance of the Contract is England and its conduct and interpretation and all disputes arising out of or in connection with it shall be governed by the laws of England and Wales. Any such dispute shall be subject to the exclusive jurisdiction of the English courts, provided that NEB may apply for an injunction or other interim relief and enforce a judgment awarded it by the English courts in any court of competent jurisdiction.
