1.1 In these Terms the following defined terms have the following meanings unless the context requires otherwise:
“Affiliate” means any corporation or business entity, which directly or indirectly (i) controls a Party, (ii) is controlled by a Party, or (iii) is under common control with a Party (the terms “controls” and “controlled” meaning (a) ownership of more than fifty percent (50%) of the voting rights and equity of such corporation or business entity and/or (b) the power to direct the management of such corporation or business entity);
“Contract” means these Terms, including all documents incorporated herein by reference, a Quote, and those specific terms of a purchase order or other document that are either consistent with these Terms or expressly agreed upon by the Parties in writing;
“Customer” means the person, firm or company who purchases or attempts to purchase Goods or Services from NEB Lyo Sciences™;
“NEB Lyo Sciences” means New England Biolabs Lyophilization Sciences™ Ltd., a United Kingdom private limited company (Company Number 7754376) with a principal place of business at The Beech-Allen Building, Porton Science Park, Bybrook Road, Porton Down, Salisbury, Wiltshire SP4 0BF United Kingdom;
“Goods” means the goods (including any instalment of the goods or any parts for them) which NEB Lyo Sciences supplies under the Contract;
“Intellectual Property” means, individually and collectively, any and all rights of any kind or nature, title, or interests in or to or arising from any of the following, whether or not filed, perfected, acquired, registered or recorded and whether existing now or being recognized or created in the future including all renewals thereof, all anywhere throughout the world and under any law or legal system: (a) patents and continuations, divisions, corrections, extensions or substitutions thereof, (b) utility models, (c) inventions, discoveries, and improvements, (d) copyrights, copyright registrations, copyright applications, copyrightable works and other related rights, (e) moral rights, rights of attribution, and integrity, (f) trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, (g) rights in designs, (h) databases and data collections, (i) confidential information (including know-how and trade secrets), (j) semiconductor topography rights, (k) specifications, formulae, data, processes, methods, techniques, or technology, and (l) all applications, registrations, petitions, and requests seeking of (a) – (k) including, without limitation, rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection.
“Materials” means all materials provided by Customer, its authorized agents, or its designees to NEB Lyo Sciences for use by NEB Lyo Sciences in its performance under the Contract, including, without limitation, primers, probes, enzymes, tooling, and templates, together with any related material, information, and/or associated know-how and data received by NEB Lyo Sciences from Customer, its authorized agents, or its designees;
“Party” means Customer or NEB Lyo Sciences, and “Parties” means Customer and NEB Lyo Sciences;
“Quote” means a quote or quotation issued to Customer by NEB Lyo Sciences setting forth, as applicable, a description and the quantity of the Goods offered to Customer, the price of the Goods, the scope of any Services, the prices for any Services, and any other relevant terms;
“Services” means the technical support, training, consultancy, or other services which NEB Lyo Sciences provides under the Contract. For purposes of the Contract, the term “Services” excludes any research, technical, developmental, and related services performed by NEB Lyo Sciences; and
“Terms” means the terms and conditions set out in this document.
1.2 References to statutes or statutory provisions include the same as amended, modified, consolidated or re-enacted whether before or after the date of the Contract; references to persons include incorporated and unincorporated persons; references to the singular include the plural and vice versa and references to clauses mean to clauses in these Terms. The headings are for ease of reference only and shall not affect the interpretation of the Terms.
1.3 The Parties acknowledge and agree that the Contract, including these Terms, constitutes the terms and conditions under which NEB Lyo Sciences sells the Goods and/or provides the Services to Customer and that the Contract will govern all Customer orders of Goods and Services from NEB Lyo Sciences. NEB Lyo Sciences' sale of Goods and/or provision of Services to Customer is expressly conditioned upon Customer’s acceptance of these Terms. Customer will be deemed to have accepted these Terms and any applicable Quote from NEB Lyo Sciences upon the earliest to occur of (a) Customer’s written acceptance of such Quote, or (b) Customer’s submission of a purchase order or other request for Goods or Services, whether pursuant to a Quote or otherwise.
2.1 NEB Lyo Sciences shall sell the Goods and/or supply the Services and the Customer shall purchase the same in accordance with any Quote and/or any order or other request for Goods or Services submitted by the Customer that NEB Lyo Sciences accepts pursuant to clause 2.2, subject in each case to these Terms.
2.2 Each order for Goods and/or the supply of Services submitted by the Customer to NEB Lyo Sciences shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Terms. Any order submitted by the Customer is subject to acceptance and availability and NEB Lyo Sciences shall not be obliged to accept any order. No order submitted by the Customer shall be deemed to be accepted by NEB Lyo Sciences unless and until (a) Customer returns any realisation form or other documentation requested by NEB Lyo Sciences, and (b)(i) such order is acted upon by NEB Lyo Sciences, whether through the commencement of Services, the commencement of the production of the Goods, the sourcing of materials required for the production of Goods or performance of Services, or otherwise, or (ii) NEB Lyo Sciences issues a written acknowledgement, whether by e-mail, mail, or otherwise, of its receipt or acceptance of the order. All orders for Goods or Services placed by Customer and accepted by NEB Lyo Sciences shall be deemed to incorporate these Terms.
2.3 The Customer shall be responsible to NEB Lyo Sciences for ensuring the completeness and accuracy of any order for Goods or Services and for giving NEB Lyo Sciences any necessary information relating to the Goods and/or Services in sufficient time to enable NEB Lyo Sciences to perform the Contract. The Customer further warrants that it has 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 key personnel.
2.4 Acceptance and completion of orders for Goods or Services are subject to NEB Lyo Sciences possessing all necessary consents, licences, authorisations and approvals required for the purpose of the supply of the Goods or the performance of the Services (“Consent(s)”). If at any time NEB Lyo Sciences is not in possession of any Consent, it shall be entitled, without any liability to the Customer, to cancel the Contract by written notice to the Customer.
2.5 THESE TERMS SHALL GOVERN THE CONTRACT TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR VERBAL, INCLUDING ANY OTHER TERMS OR CONDITIONS IMPLIED BY TRADE CUSTOM OR COURSE OF DEALING OR WHICH ARE ALLUDED TO, DELIVERED WITH, OR CONTAINED IN THE CUSTOMER’S ORDER, THE CUSTOMER’S CONFIRMATION OF OR ACCEPTANCE OF AN ORDER OR A QUOTE, ANY SPECIFICATION, OR ANY OTHER DOCUMENT PROVIDED BY CUSTOMER, AND SUCH OTHER TERMS AND CONDITIONS SHALL NOT FORM PART OF THE CONTRACT. NEB LYO SCIENCES’ FAILURE TO OBJECT TO ANY TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER REQUEST FOR GOODS OR SERVICES OR OTHER DOCUMENT FROM CUSTOMER OR TO ANY TRANSFER OF MATERIALS WILL NOT BE CONSTRUED AS NEB LYO SCIENCES’ ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR AS NEB LYO SCIENCES’ WAIVER OF THESE TERMS.
2.6 These Terms, together with any Quote or other Contract document into which they are incorporated, represent the entire agreement and understanding between the Customer and NEB Lyo Sciences with regard to the Contract.
2.7 No alterations to the Contract or any of these Terms shall be binding on NEB Lyo Sciences unless expressly agreed by NEB Lyo Sciences in writing.
2.8 Unless otherwise agreed in writing, any Quote issued by NEB Lyo Sciences is valid for a period of thirty (30) days from its date unless NEB Lyo Sciences has extended it (including in writing or by fulfilling orders placed in respect of or in reference to such Quote despite the expiration thereof) or withdrawn it.
3 MODIFICATION AND CANCELLATION
3.1 Unless otherwise expressly agreed by NEB Lyo Sciences in writing, no order may be modified or cancelled by the Customer once it has been accepted by NEB Lyo Sciences pursuant to clause 2.2. Any changes the Customer may propose to the specifications, quantities, method of shipment, schedule or place of delivery of Goods must be provided to NEB Lyo Sciences in writing and may be accepted by NEB Lyo Sciences at its discretion. The Customer shall pay NEB Lyo Sciences for all losses (including loss of profit), costs (including the cost of all labour and materials), damages, re-stocking charges and expenses incurred by NEB Lyo Sciences as a result of any order modification or cancellation agreed to by NEB Lyo Sciences. A re-stocking charge of five (5%) of the invoice value will be made for Goods ordered in error, return carriage and any other amounts specified herein, including handling charges pursuant to clause 14.7, to be borne by the Customer.
4 SPECIFICATIONS OF GOODS
4.1 The quantity and description of ordered Goods shall be those set out in NEB Lyo Sciences' Quote (if any) or the Customer’s order (if accepted by NEB Lyo Sciences pursuant to clause 2.2).
4.2 Any descriptions, illustrations and particulars contained in NEB Lyo Sciences' sales literature and any advertising media are by way of general descriptions and approximate only and shall not form part of the Contract or give rise to any obligation or liability on the part of NEB Lyo Sciences.
4.3 NEB Lyo Sciences reserves the right to make any changes in the specifications of the Goods, including those changes which are required to conform the Goods to applicable safety or other statutory requirements; provided, however, that NEB Lyo Sciences shall not make such changes where the Goods are to be supplied to the Customer’s specification unless such changes do not materially affect the Goods’ form, fit, or function.
4.4 Unless otherwise stated on labels for the Goods, in a written agreement between NEB Lyo Sciences and the Customer, or in a realisation form issued by NEB Lyo Sciences to the Customer, all Goods are for “Research Use Only” and are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, 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.
4.5 The Customer acknowledges that neither the Goods nor the Materials have been tested by or for NEB Lyo Sciences for safety or efficacy and agrees to properly test and use the Goods in compliance with all relevant legal, regulatory and ethical requirements and with any documents or manuals provided by NEB Lyo Sciences with such Goods.
5.1 THE CUSTOMER ACKNOWLEDGES THAT IT IS NOT ENTERING INTO THE CONTRACT ON THE BASIS OF, OR IN RELIANCE UPON, ANY STATEMENT, REPRESENTATION, WARRANTY OR UNDERTAKING BY NEB LYO SCIENCES EXCEPT AS EXPRESSLY SET OUT IN THE CONTRACT. In the event Customer is directly or indirectly providing Materials to NEB Lyo Sciences, Customer acknowledges NEB Lyo Sciences is not the designer, manufacturer, or supplier of the Materials. The Customer acknowledges that nothing in this Contract will be construed as a representation or warranty that the use of the Goods is or will be free from infringement of third party Intellectual Property rights. The Customer acknowledges that it is the sole responsibility of the Customer to (i) confirm that the Goods are suitable for Customer’s intended purpose and use; (ii) confirm that the Customer’s intended purpose and use of the Goods complies with applicable law, and (iii) obtain all necessary approvals, licenses, third party Intellectual Property rights, and permissions needed for such purpose and use.
6 GOODS SUPPLIED FOR LOAN OR EVALUATION
6.1 Any Goods supplied to the Customer for loan or evaluation purposes must be returned in their original condition and packaging with all warranty documents and manuals, within the time specified on dispatch. NEB Lyo Sciences shall be entitled to charge for any items not so returned or damaged.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 The Customer acknowledges and agrees that all Intellectual Property rights in the Goods and in any NEB Lyo Sciences technology, Intellectual Property, and know-how used to make or useful for the manufacture or use of the Goods will at all times remain vested in NEB Lyo Sciences and its licensors, and no provision in the Contract will grant ownership of and/or rights of use of such Intellectual Property to Customer.
7.2 The Customer shall not perform compositional, structural, functional or other analysis of the Goods, or undertake deconvolution or reverse engineering with respect to the Goods.
8.1 The price of the Goods and/or Services shall be NEB Lyo Sciences' quoted price in pounds sterling, and, unless otherwise agreed in writing, Customer shall pay such price in pounds sterling. Customer shall be responsible for all foreign transaction fees and similar fees for any payments to NEB Lyo Sciences in any currency other than pounds sterling and shall reimburse NEB Lyo Sciences for any such fees incurred by NEB Lyo Sciences. All prices quoted are valid for thirty (30) days or until NEB Lyo Sciences' suppliers’ prices change (whichever is earlier) after which time they may be altered by NEB Lyo Sciences without notice to the Customer.
8.2 NEB Lyo Sciences reserves the right, by giving notice to the Customer at any time before delivery of Goods or performance of Services, to increase the price of the Goods to reflect any increase in the cost to NEB Lyo Sciences due to any factor beyond its control, any change in delivery dates, delivery address, quantities, or specifications for the Goods requested by the Customer and agreed to by NEB Lyo Sciences, or any delay caused by any instructions of the Customer or failure of the Customer to give NEB Lyo Sciences adequate Materials, information or instructions.
8.3 Unless otherwise stated by NEB Lyo Sciences in writing, all prices and charges are exclusive of: (a) carriage, shipping, and insurance; (b) any release certificates or certificates of conformity; and (c) value added tax and any other applicable tax, duty or surcharge, all of which will be charged by NEB Lyo Sciences at the applicable rate and recoverable as part of the price for the applicable Goods or Service by NEB Lyo Sciences.
8.4 Where a price is stated to include carriage or shipping, such carriage or shipping is on the basis of delivery on the next working day following dispatch between 8:30 am and 5:30 pm, unless otherwise stated. Timed, weekend, or more expedited delivery will incur additional charges.
9 GENERAL PAYMENT TERMS
9.1 Unless NEB Lyo Sciences has previously agreed upon credit terms with the Customer (in which case the terms of clause 10 apply), payment for all Goods and Services must be made at the time of order and no delivery or performance will take place before payment is received by NEB Lyo Sciences.
9.2 NEB Lyo Sciences shall be entitled at any time by notice in writing to the Customer to stipulate the method of payment and may withhold deliveries if the stipulated method is not used. Otherwise, payment may be made by cash, cleared cheque, bankers draft or BACS transfer. Payment by cheque or other negotiable instrument is ineffective until honoured and NEB Lyo Sciences' account is irrevocably credited with the amount due.
9.3 The time for payment of the price for any Goods or Services shall be of the essence of the Contract.
9.4 If NEB Lyo Sciences is unable to deliver all the Goods or supply all the Services ordered by the Customer for reasons beyond NEB Lyo Sciences' control (including, but not limited to, those described in clause 19.1), the Customer shall pay for such of the Goods as are delivered and such of the Services as are performed and NEB Lyo Sciences shall refund Customer for any amounts paid for Goods not delivered and Services not performed.
10 CREDIT TERMS
10.1 Where credit terms have been agreed, the provisions in this clause 10 (in addition to the terms of clause 9 other than clause 9.1) shall apply to payments made hereunder.
10.2 A valid and approved purchase order number from the Customer must be provided with the applicable order of Goods. Goods will only be dispatched if the Customer’s credit account is in good standing having not exceeded any credit limit set by NEB Lyo Sciences.
10.3 NEB Lyo Sciences shall be entitled to invoice the Customer for the price of the Goods on or at any time after shipment unless the Goods are to be collected by the Customer or the Customer wrongfully fails or refuses to take delivery of the Goods, in which case NEB Lyo Sciences shall be entitled to invoice at any time after it has notified the Customer that the Goods are ready for collection or, if applicable, after NEB Lyo Sciences has indicated its readiness to deliver the Goods.
10.4 Where delivery of Goods takes place by instalments, NEB Lyo Sciences shall be entitled to invoice each instalment separately.
10.5 Where NEB Lyo Sciences has agreed, at the Customer’s request, to postpone delivery of Goods which are already in stock with NEB Lyo Sciences, then NEB Lyo Sciences shall be entitled to invoice the Customer on the date upon which NEB Lyo Sciences would have sent such invoice but for the postponement. Such invoice may, at NEB Lyo Sciences' discretion, include the reasonable costs (including insurance) incurred by NEB Lyo Sciences to store such Goods during such postponement.
10.6 The Customer shall pay an invoice (without any deduction or set-off) for Goods within thirty (30) days of the date of invoice notwithstanding that delivery may not have taken place and the title in the Goods may not have passed to the Customer. NEB Lyo Sciences shall be entitled to bring an action for the price, or part thereof, whether or not the title to the Goods has passed.
10.7 NEB Lyo Sciences shall be entitled to invoice the Customer for Services at any time prior to or after the performance thereof.
10.8 NEB Lyo Sciences shall be entitled to invoice the Customer for the full price of any Services notwithstanding any notice from or decision by the Customer that it no longer requires all or any part of the Services.
10.9 Where performance of Services takes place by instalments, NEB Lyo Sciences shall be entitled to invoice each instalment separately.
10.10 The Customer shall pay the fee for the Services (without any deduction or set-off) within thirty (30) days of the date of NEB Lyo Sciences' invoice for such Services.
10.11 If the Customer fails to make any payment in full by the due date of such payment, then, without prejudice to any other right or remedy available to NEB Lyo Sciences and without any liability from NEB Lyo Sciences to the Customer:
a. The Customer shall pay interest on the outstanding amount, before and after judgment, at the lower of (i) a rate of five (5%) above the base rate of Barclays Bank plc in the UK, calculated annually but accruing on a daily basis, or (ii) the highest rate as is allowed by applicable law;
b. NEB Lyo Sciences may cancel the Contract and/or suspend any further deliveries or performance and, in either case, hold the Customer liable for costs incurred in respect of goods already ordered by NEB Lyo Sciences from its suppliers in respect of Goods or Services;
c. NEB Lyo Sciences may appropriate any payment made by the Customer to such of the Goods or Services (or to the goods or services supplied under any other contract between the Customer and NEB Lyo Sciences) as NEB Lyo Sciences may deem fit in its sole judgment (notwithstanding any purported appropriation by the Customer);
d. NEB Lyo Sciences may suspend any credit allowed to the Customer under this clause 10; and
e. NEB Lyo Sciences may exercise its rights under clause 16.
10.12 The Customer acknowledges and agrees it shall not be entitled by reason of any claim against NEB Lyo Sciences to withhold any payment due to NEB Lyo Sciences under the Contract.
11 DELIVERY OF GOODS AND PROVISION OF MATERIALS
11.1 Unless otherwise agreed in writing by NEB Lyo Sciences, all shipments of Goods will be Ex Works (Incoterms 2020) NEB Lyo Sciences' principal place of business (the “Delivery Point”). Goods are deemed delivered upon tender of delivery to the carrier at the Delivery Point. Customer shall specify the method of transportation and the common carrier to be used, provide all applicable customer account numbers and labelling for such carrier, and arrange for collection at the Delivery Point. If Customer does not provide the information required in the preceding sentence, then NEB Lyo Sciences shall ship the Goods by a common carrier of its own selection and invoice Customer for all applicable charges associated with such shipment. Risk of damage to or loss of the Goods shall pass to the Customer upon tender of delivery of the Goods to the carrier at the Delivery Point .
11.2 Any dates quoted or specified for delivery by NEB Lyo Sciences are estimates only and NEB Lyo Sciences shall not be liable for any delay in delivery howsoever caused. Time for delivery shall not be of the essence.
11.3 NEB Lyo Sciences may make, in its sole discretion, and the Customer shall accept, partial deliveries of Goods, in which case all such instalments may be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Each such delivery shall constitute a separate Contract with respect to the delivered Goods. Failure by NEB Lyo Sciences to deliver any one or more of the instalments in accordance with these Terms, any delay by NEB Lyo Sciences in delivering any instalment, or any claim by the Customer in respect of any instalment, shall not entitle the Customer to treat the Contract as a whole as repudiated and shall not relieve the Customer of its obligations to accept subsequent deliveries of Goods.
11.4 If the Customer fails to take delivery of the Goods, or fails to give NEB Lyo Sciences adequate delivery instructions, then, without prejudice to any other right or remedy available to NEB Lyo Sciences, NEB Lyo Sciences may:
11.4.1 store the Goods until actual delivery at Customer’s risk and expense (including insurance costs), and/or
11.4.2 make further attempts to arrange delivery, in which case the Customer shall be liable for all additional delivery costs.
11.5 Customer shall be responsible for supplying, or causing to be supplied to, NEB Lyo Sciences at such locations as NEB Lyo Sciences may specify in writing from time to time, at no cost to NEB Lyo Sciences, sufficient quantities of any Materials, as well as any related information determined by Customer or reasonably requested by NEB Lyo Sciences, required to enable NEB Lyo Sciences to fulfill Customer’s orders of Goods and otherwise perform under the Contract. Customer acknowledges NEB Lyo Sciences' performance under the Contract may consume up to all of the Materials provided to NEB Lyo Sciences. Customer will use best efforts to provide a single batch of the Materials required for NEB Lyo Sciences' performance under the Contract. If Customer provides Materials in multiple batches, then NEB Lyo Sciences may (a) charge Customer for any reasonably necessary goods-in quality control or equivalence studies it conducts, and (b) alter, in its sole discretion, any deliverable schedules set forth in the Contract or other communications with Customer. Customer will retain all right, title and interest, including, but not limited to, Intellectual Property rights, in and to the Materials. Notwithstanding the foregoing, Customer grants NEB Lyo Sciences a non-exclusive, non-transferable right to use any Materials solely for the purpose of performing its obligations under the Contract, and NEB Lyo Sciences shall use such Materials solely and exclusively in connection with its performance under the Contract. NEB Lyo Sciences will not, without Customer’s prior written consent, (a) sell, distribute or transfer Materials to any other person or entity other than its personnel who require access to the Materials to perform under the Contract, (b) perform compositional, structural, functional or other analysis of the Materials or undertake deconvolution or reverse engineering with respect to the Materials except as may be necessary for its performance under the Contract, or (c) seek to obtain or obtain any patent right in or to the Materials. Except as expressly stated in this clause 11.5, Customer’s delivery of Materials to NEB Lyo Sciences will provide NEB Lyo Sciences with custody of the Materials and will not constitute a sale thereof or a grant, option or license under any patent or other rights owned or controlled by Customer or creation of a bailment.
11.6 Customer, at its sole cost and risk of loss, will ship, or arrange for the shipment of, any Materials to be provided under the Contract. All Materials shall be delivered freight, insurance and duty paid at the applicable location. NEB Lyo Sciences shall not be responsible for the quality or performance of Materials except to the extent the quality or performance of such Materials is negatively impacted by NEB Lyo Sciences' negligence or willful misconduct. NEB Lyo Sciences shall not be liable for any damage to, loss of, or waste of the Materials unless such damage or loss arises from NEB Lyo Sciences' negligence or willful misconduct while such Materials are in NEB Lyo Sciences' possession. In no event shall NEB Lyo Sciences be responsible for any delay or failure in delivery of any Goods resulting from the Materials, including but not limited to insufficient quantities of Materials in stock at NEB Lyo Sciences, provided that the delay or failure in delivery of Goods does not result from damage or loss of the Materials while in NEB Lyo Sciences' possession due to NEB Lyo Sciences' negligence or willful misconduct. NEB Lyo Sciences may charge Customer for any damaged or deficient Materials provided by or on behalf of Customer that results in costs to NEB Lyo Sciences. Prior to or in conjunction with delivery of any Materials, Customer, or a third party on its behalf, will provide NEB Lyo Sciences with associated safety data sheets, safe handling instructions, health and environmental information, certificates of analysis or compliance or a raw material specification, as applicable, and regulatory certifications or authorizations that may be required under applicable law or regulation. Furthermore, prior to or in conjunction with delivery of any Materials containing hazardous or toxic substances, Customer shall notify NEB Lyo Sciences in writing of such substances in a sufficiently detailed manner to enable NEB Lyo Sciences to (i) notify employees of the risks involved in using or handling the Materials and to train and equip them to handle the Materials safely, and (ii) comply with any applicable laws relating to the hazardous or toxic nature of substances contained in the Materials.
11.7 All Materials at risk of environmental contamination of manufacturing facilities (including, for example, nucleic acids) will be shipped in separate containers and delineated within the shipment container so that the Materials and shipment container may be properly handled and opened in a manner that avoids environmental contamination. Customer will endeavour, if applicable, to use screw cap vials prior to shipment to reduce the risks of such environmental contamination. All Materials will be clearly labeled with the following information (if applicable): product name; code; quantity, value, EU Tariff code, concentration (in standard international units when possible); storage conditions; expiration date; and LOT number. If Customer provides Materials deficient in labelling or packaging, then NEB Lyo Sciences may charge Customer for any time it takes for NEB Lyo Sciences to correct such deficiencies.
11.8 Customer represents and warrants it has all necessary rights, including Intellectual Property rights, to transfer any Materials to NEB Lyo Sciences for the purposes described herein and to grant the rights with respect to the Materials granted under the Contract.
11.9 NEB Lyo Sciences will destroy any remaining Material in its possession or control within thirty (30) days after the earlier to occur of (i) the expiry date, if any, of the Material, (ii) a written request from Customer; and (iii) written notice to Customer; provided, however, Customer may, upon reasonable advance written notice, request that NEB Lyo Sciences return such Material to Customer by making such Material available for collection by the Customer at NEB Lyo Sciences' premises at a mutually agreed upon time.
12 PERFORMANCE OF SERVICES
12.1 The location for performance of the Services may not be varied without NEB Lyo Sciences' prior written consent and any variation may entail additional charges to the Customer. Any dates quoted for performance of the Services are estimates only and NEB Lyo Sciences shall not be liable for any delay in performance howsoever caused. Time for performance shall not be of the essence.
12.2 NEB Lyo Sciences may undertake, and the Customer shall accept, partial performance of Services in which case all such instances of partial performance may be separately invoiced and paid for when due per invoice, without regard to subsequent performance of Services. Each such instance of performance shall constitute a separate Contract with respect to the provided Services. Failure by NEB Lyo Sciences to perform any one or more of the instalments of Services in accordance with these Terms, any delay by NEB Lyo Sciences in performing any instalment of Services, or any claim by the Customer in respect of any instalment of Services, shall not entitle the Customer to treat the Contract as a whole as repudiated and shall not relieve the Customer of its obligations to accept subsequent performance of any instalment of the Services.
13 WARRANTIES AND LIABILITY
13.1 Provided that payment has been made in accordance with the Contract, NEB Lyo Sciences shall use reasonable endeavours to extend to the Customer the benefit of such guarantees or warranties in relation to the Goods as may be extended to NEB Lyo Sciences by the relevant manufacturers or distributors.
13.2 EXCEPT AS EXPRESSLY STATED IN THESE TERMS, ALL CONDITIONS, WARRANTIES AND INNOMINATE TERMS, WHETHER AS TO MERCHANTABILITY, QUALITY, OR FITNESS FOR ANY PARTICULAR PURPPOSE (INCLUDING, WITHOUT LIMITATION, ANY PURPOSE CONTEMPLATED BY THE CUSTOMER), NON-INFRINGEMENT, OR OTHERWISE AND WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, CONDUCT, TRADE CUSTOM OR USAGE, OR PREVIOUS COURSE OF PERFORMANCE OR OTHERWISE, ARE HEREBY EXCLUDED AND EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHERMORE, ANY WARRANTY EXPRESSLY STATED IN THESE TERMS EXTENDS ONLY TO THE CUSTOMER AND MAY NOT BE TRANSFERRED.
13.3 EB Lyo Sciences warrants that the Goods will meet the applicable specifications (as such specifications are agreed upon by NEB Lyo Sciences) at the time at which NEB Lyo Sciences delivers such Goods to the Customer. This warranty shall not be effective if NEB Lyo Sciences determines, in its sole discretion, any of the following:
13.3.1 Customer or any party other than NEB Lyo Sciences misused or altered, repaired, modified, or re-configured the Goods;
13.3.2 There was a failure to follow NEB Lyo Sciences' storage or use instructions; or
13.3.3 The Goods failed to meet the applicable specifications as a result of any act, negligence, neglect, or accident of the Customer or any party other than NEB Lyo Sciences and its agents.
13.4 Customer shall notify NEB Lyo Sciences of any claim under clause 13.3 in accordance with the following time periods: (a) in the case of a defect that is apparent on normal visual inspection, within five (5) working days of receipt by Customer; and (b) in the case of a latent defect discovered within six (6) months of Customer’s receipt of a Good, within five (5) working days of Customer becoming aware of such latent defect. If Customer does not notify NEB Lyo Sciences of any claim under clause 13.3 within the foregoing time periods, then the Customer shall not be entitled to reject the Goods and shall be bound to pay the price as if delivery or performance had been in accordance with the Contract.
13.5 In the event of a valid claim under clause 13.3, NEB Lyo Sciences’ sole and exclusive liability shall be, at its option, to make good any deficiency (whether by making up any shortfall, arranging repair or obtaining replacements) or to credit the Customer for the price paid for the deficient Goods.
13.6 SAVE IN THE CASE OF DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR FRAUDULENT MISREPRESENTATION OR IN THE CASE OF ANY OTHER LIABILITY WHICH MAY NOT BE LIMITED OR EXCLUDED BY LAW (AND ALL PROVISIONS PURPORTING TO LIMIT OR EXCLUDE LIABILITY IN THESE TERMS ARE SUBJECT TO SUCH PROVISO):
13.6.1 NEB LYO SCIENCES' ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY GOODS OR SERVICES, INCLUDING ANY CONTRACT, IS LIMITED TO THE INVOICED VALUE OF SUCH GOODS OR SERVICES IN CONNECTION WITH WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN; AND
13.6.2 NEB LYO SCIENCES SHALL BE IN NO MANNER LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS OR GOODWILL, LOSS UNDER CURRENT OR FUTURE CONTRACTS, LOSS OF PROFIT, LOSS OF USE, ECONOMIC LOSS, DISASTER RECOVERY COSTS OR ADMINISTRATIVE COSTS, EVEN IF NEB LYO SCIENCES HAS BEEN ADVISED OF THE LIKELIHOOD OF ANY OF THE AFORESAID APPLYING.
13.7 Subject to clause 13.6, NEB Lyo Sciences shall be in no manner liable for how the Customer uses the Goods or the results of the Services or for any loss or liability arising out of or in connection with reliance on results generated from tests using them.
14.1 Goods may not be returned without the prior written agreement of NEB Lyo Sciences and the issue by NEB Lyo Sciences of a returns authorisation number.
14.2 All returns must be sent to NEB Lyo Sciences' premises at the Customer’s risk and expense within forty-eight (48) hours of the issuance of the returns authorisation.
14.3 Acceptance of delivery of Goods returned to NEB Lyo Sciences without the issue of a returns authorisation number shall not constitute acceptance of the validity of the return. Such Goods shall remain at the Customer’s risk and NEB Lyo Sciences shall have no obligations in respect of them.
14.4 Goods returned following an incorrect Customer order, or due to incorrect shipment by NEB Lyo Sciences, must be returned unused and unopened, in clean and re-saleable condition, complete with all original manuals and other items supplied with them and securely packed in their original packaging and must not have been introduced into a laboratory environment. They shall remain at the Customer’s risk until so returned. If they are not so returned, NEB Lyo Sciences may (in its absolute discretion):
14.4.1 reject the return, in which case it shall be the responsibility to the Customer to arrange collection from NEB Lyo Sciences and the Goods shall remain at the Customer’s risk, or
14.4.2 accept the return and invoice the Customer for the cost of replacing the missing items and/or the amount of any diminution in resale value.
14.5 Goods returned for failing to meet clause 13.3 must be complete with all original manuals and other items supplied with them and securely packed in their original packaging. Subject to clause 13.6, NEB Lyo Sciences' sole and exclusive liability and Customer’s exclusive remedy for Goods confirmed to be failing to meet clause 13.3 by NEB Lyo Sciences and returned in accordance with this clause 14.5 shall be as specified in clause 13.5.
14.6 Where NEB Lyo Sciences finds returned Goods to meet clause 13.3, NEB Lyo Sciences shall be entitled (whether or not an advance replacement has been supplied) to reject the return. Where any return is rejected, notification of rejection shall be effective if communicated in writing and the original payment terms with respect to such Goods shall be unaffected. NEB Lyo Sciences may (in its discretion) return such Goods and other Goods returned without authorisation to the Customer and charge for carriage or shipping at its normal rates or require the Customer to arrange collection of such Goods.
14.7 Where Goods are returned due to an incorrect Customer order, or where they are returned as failing to meet clause 13.3 but are found to meet clause 13.3, NEB Lyo Sciences shall be entitled to levy a handling charge equal to fifteen (15%) of the price of the Goods plus carriage or shipping charges.
15 CUSTOMER’S INDEMNITY AND OTHER WARRANTIES
15.1 The Customer agrees to indemnify and hold harmless NEB Lyo Sciences and its Affiliates’ and its and their employees, agents, successors, officers, licensees, subcontractors and assigns (collectively, the “ NEB Lyo Sciences Indemnitees”), from and against any and all damages, claims, demands, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) that the NEB Lyo Sciences Indemnitees may incur arising out of or in connection with (a) the use, modification, sale, resale, storage, handling, export, re-export, disposal, or transfer of, or other acts or omissions related to the Goods or any final articles made therefrom by Customer, (b) Customer’s negligence or willful misconduct, (c) any breach by Customer of this Contract, including any breach of its representations, warranties, or obligations hereunder, (d) Customer’s failure to acquire any applicable additional rights related to its use of the Goods, and (e) NEB Lyo Sciences' use or possession of Materials. In furtherance of, and not in limitation of, the foregoing, if any work is required to be performed or done on or to the Goods in accordance with the requirements or specifications of the Customer, the Customer shall indemnify the NEB Lyo Sciences Indemnitees against any and all Losses that the NEB Lyo Sciences Indemnitees may incur arising out of or in connection with any claim for infringement of any third party’s patent, copyright, registered design, design right, know-how or service mark or trademark which results from NEB Lyo Sciences supplying the Goods in accordance with the Customer’s specification.
16 PASSING OF TITLE
16.1 Notwithstanding delivery and the passing of risk in the Goods, title to the Goods shall remain with NEB Lyo Sciences until such time as NEB Lyo Sciences has received payment in full for the Goods in accordance with the terms of the Contract.
16.2 NEB Lyo Sciences shall be entitled to pursue any action or claim available to it for the price of the Goods notwithstanding that title has not passed.
16.3 NEB Lyo Sciences shall have the right, by giving notice in writing to the Customer at any time after the agreed delivery date, to pass title to the Customer as from the date of notice.
16.4 Until such time as title to the Goods passes to the Customer under the Contract, the Customer shall (a) hold the Goods as NEB Lyo Sciences' bailee, (b) keep the Goods secure, in complete and saleable condition, separate from other goods of the Customer and third parties and clearly identified as NEB Lyo Sciences' property, (c) ensure no charge, lien or other encumbrance is created over the Goods, and (d) promptly deliver the Goods to NEB Lyo Sciences upon demand or grant NEB Lyo Sciences and its agents full access to any premises containing the Goods so that they can be recovered pursuant to clause 16.5. The Customer shall not attach or affix the Goods to any premises without the prior written consent of NEB Lyo Sciences.
16.5 Until title passes to the Customer, NEB Lyo Sciences shall be entitled to require the Customer to immediately deliver the Goods or any part of them to NEB Lyo Sciences. If the Customer fails to do so, then NEB Lyo Sciences (and its agents) shall be entitled to repossess the Goods and to enter upon any premises owned or controlled by the Customer where the Goods are stored, or where NEB Lyo Sciences reasonably believes that the Goods are stored, for the purpose of taking such possession. Where the Goods have been installed or attached to any other property, NEB Lyo Sciences shall be entitled to detach the Goods (making good any damage thereby caused so long as NEB Lyo Sciences provided its prior written consent for such installation or attachment). Such redelivery or retaking of possession shall be without prejudice to the obligation of the Customer to purchase the Goods in accordance with the Contract.
16.6 If the Customer has sold or otherwise parted with possession of any of the Goods before NEB Lyo Sciences has received payment in full, the Customer shall hold the proceeds of sale (or, in the case of payment not having been made, the debt owed to the Customer by its customer) up to the amount or value of the Customer’s debt to NEB Lyo Sciences as agent and trustee for NEB Lyo Sciences, and the Customer shall pay such proceeds, or assign such debt, to NEB Lyo Sciences on demand. As between the Customer and its customers, the Customer shall sell in the Customer’s own name as principal and shall have no authority to enter into any contract on behalf of NEB Lyo Sciences.
17 LIEN AND SET-OFF
17.1 NEB Lyo Sciences shall have a particular and general lien on all goods and property of the Customer, including any Materials, in NEB Lyo Sciences' possession in respect of all sums due from the Customer to NEB Lyo Sciences but unpaid at any time. NEB Lyo Sciences shall be entitled, on giving fourteen (14) days’ written notice to the Customer, to dispose of such goods or property, including any Materials, and to apply the proceeds towards the reasonable and proper costs of such disposal and reduction of such debt and thereafter to account to the Customer for any remaining balance.
17.2 In the event of there being any sums due from NEB Lyo Sciences to the Customer on any account whatsoever, then, notwithstanding any course of conduct or contract to the contrary, any right which the Customer may have against NEB Lyo Sciences to set off sums so due, or claimed to be due, from NEB Lyo Sciences to the Customer against the price of the Goods or Services is hereby excluded to the maximum extent permitted by law.
18 EXPORT CONTROL; ANTICORRUPTION COMPLIANCE
18.1 The Customer acknowledges that the Goods may be subject to export and re-export restrictions imposed by United Kingdom (“U.K.”), United States of America (“U.S.”), or other countries’ laws. The Customer represents and warrants to NEB Lyo Sciences that it will not, directly or indirectly, (i) sell, export, reexport, transfer, divert, or otherwise dispose of any goods (including Goods), software, or technology (including goods or products derived from or based on such technology) received from NEB Lyo Sciences to any destination, entity, or person prohibited by the laws of the U.K. or the U.S., or resell them to a purchaser whom it knows (or has reasonable grounds to suspect ) will sell, export, reexport, transfer, divert, or otherwise dispose of them to such destination, entity, or person, or (ii) use the Goods for any use prohibited by the laws or regulations of the U.K. or the U.S. and/or the Customer’s local jurisdiction, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
18.2 The Customer represents and warrants that it will comply with all applicable laws and regulations relating to bribery and corruption, including but not limited to the U.K. Bribery Act and the U.S. Foreign Corrupt Practices Act. Without limiting the generality of the foregoing, the Customer represents and warrants that it will not pay money or provide anything of value to any government official in violation of bribery or corruption laws or regulations applicable to its business activity.
19 FORCE MAJEURE
19.1 NEB Lyo Sciences shall not be liable to the Customer for any delay or failure by NEB Lyo Sciences to perform its obligations under the Contract if such delay or failure arises from any cause beyond the reasonable control of NEB Lyo Sciences, including, without limitation, any act of or failure to act by the Customer, embargo or other governmental act, any law, regulation, investigation or audit affecting NEB Lyo Sciences' business, fire, explosion, accident, theft, vandalism, riot, acts of war, epidemic, pandemic, strikes or other industrial issues, lightning, flood, storm or other acts of God, delay in transportation, or inability to obtain necessary personnel, fuel, materials supplies or facilities.
20 CUSTOMER’S INSOLVENCY / DEFAULT
20.1 If the Customer is in breach of any of its obligations under the Contract, or makes any voluntary arrangement with its creditors, or becomes subject to an administration order, or becomes bankrupt or goes into liquidation (other than for the purposes of amalgamation or reconstruction), or an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer, or any of the assets of the Customer are subject to any levy or distraint, or the Customer ceases or threatens to cease to carry on business, or NEB Lyo Sciences reasonably apprehends that any of the events mentioned above is about to occur and notifies the Customer accordingly, then, all sums owing by the Customer to NEB Lyo Sciences shall immediately become due and payable and, without prejudice to any other right or remedy available to NEB Lyo Sciences, NEB Lyo Sciences shall be entitled to cancel the Contract and/or suspend any further deliveries without any liability to the Customer notwithstanding any previous agreement or arrangement or any provision in the Contract to the contrary.
20.2 If the Customer becomes insolvent, then NEB Lyo Sciences shall have the right to stop Goods in transit and to take and retain possession of them until payment.
21 HEALTH & SAFETY
21.1 Where any employee, agent, or sub-contractor of NEB Lyo Sciences is admitted to the Customer’s premises pursuant to the Contract, the Customer shall take all necessary measures to safeguard the health and safety of such persons and shall indemnify NEB Lyo Sciences against all claims, costs and expenses resulting from any breach of this condition.
22 NOTICES / SERVICE
22.1 Day to day communications between the Parties may be by telephone or email. However, formal notices under the Contract must be served by e-mail, facsimile or registered post (air mail into or out of the UK) to the recipient party’s e-mail address, fax number or mailing address as given in NEB Lyo Sciences' order confirmation or other subsequent correspondence and shall be deemed received: (i) in the case of e-mail or fax, when sent, subject to there being evidence of successful transmission; (ii) in the case of post within the U.K., two (2) working days after posting; and (iii) in the case of air mail, seven (7) business days after posting.
23.1 NEB Lyo Sciences may assign, delegate, transfer, sub-license or delegate the Contract or any part of it.
24.1 Customer acknowledges that NEB Lyo Sciences and/or its Affiliates may at any time have, develop, use or acquire from third-parties material, assets, programs and/or information that are similar to or competitive with Materials or with Customer assets, programs, information and/or activities.
24.2 If any provision of the Contract is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
24.3 NEB Lyo Sciences’ 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.
24.4 The Customer may not assign, transfer, sub-license, delegate or subcontract the Contract or any part of it without the prior written consent of NEB Lyo Sciences.
24.5 No terms contained in any standard form purchase order, order acknowledgment, invoice, Material warranty literature or Material manuals, or any other standardized form or document will be construed to amend or modify the terms of the Contract, and in the event of any conflict, the Contract will control. In the event of a conflict between (a) the Terms and a Quote, the Quote will take precedence, and (b) a written contract signed by both Customer and NEB Lyo Sciences covering the same subject matter as set forth herein and any Quote, such written contract will take precedence over both the Quote and these Terms.
24.6 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.
24.7 All rights and remedies under the Contract are cumulative and are in addition to any other rights and remedies of NEB Lyo Sciences at law or in equity.
24.8 The Customer agrees to keep confidential any non-public technical information, commercial information (including, without limitation, prices) or instructions received from NEB Lyo Sciences as a result of discussions, negotiations and other communications in relation to NEB Lyo Sciences' goods and services, including the Goods and the Services, or otherwise in relation to the Contract.
24.9 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 Lyo Sciences 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.
24.10 NEB Lyo Sciences reserves the right to change these Terms at any time. Any changes made to these Terms will not apply to the Contract between the Customer and NEB Lyo Sciences for any order received before the changes are made.