1.1 The definitions and rules of interpretation in this condition apply in these Conditions.
“Buyer” means the person, firm or company who purchases the Goods from the Company;
“Company” means Cellesce Limited, a company registered in England and Wales under number 08484947;
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Contract Price” means the total price payable by the Buyer for the supply of Goods under a Contract;
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4;
“Goods” means the Company’s range of organoid products agreed in the Contract to be supplied to the Buyer by the Company and the Services (where the context so implies), together with any other goods which the Buyer agrees to take from the Company;
“Services” means any testing and/or development services to be provided by the Company under the Contract, together with any other services which the Company provides, or agrees to provide, to the Buyer.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and, in the plural, include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2 Application of terms
2.1 Subject to any variation under condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification, or other document).
2.2 No terms or conditions endorsed on, delivered with, or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods (or starts providing the Services) to the Buyer.
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer or (if earlier) the Company delivers the Goods (or starts providing the Services) to the Buyer. Any quotation is valid for a maximum period of 30 days only from its date (unless otherwise specified), provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications, and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s invoice address.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 The Company shall 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 Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.4 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences, or authorisations:
4.4.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence).
4.4.2 the Goods shall be deemed to have been delivered; and
4.4.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
4.5 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
5 Export Terms
5.1 The Company will only send its products to companies and research institutes involved in bona fide research. Products will not be sent to private addresses.
5.2 In these Conditions, “Incoterms 2010″ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms 2010 and these Conditions, the latter shall prevail.
5.3 Where the Goods are supplied for export from the United Kingdom, the provisions of this condition 5 shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these Conditions.
5.4 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
5.5 Unless otherwise agreed in writing between the Buyer and the Company, the Goods shall be delivered “Free Carrier” at the Company’s premises.
6.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within five days of the date when the Goods would in the ordinary course of events have been received.
6.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
7.1 The Goods are at the risk of the Buyer from the time of delivery.
7.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
7.2.1 the Goods; and
7.2.2 all other sums which are, or which become due to the Company from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
7.3.1 hold the Goods on a fiduciary basis as the Company’s bailee.
7.3.2 not destroy, deface, or obscure any identifying mark or packaging on or relating to the Goods; and
7.3.3 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
7.4 The Buyer shall not make products or any portion of them, in any way, shape or form, including as a component of another product available for the purpose of further resale or alter or remove the product label and the Company’s mark of origin without the express written permission of the Company.
7.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
7.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
7.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
7.5.3 the Buyer encumbrances or in any way charges any of the Goods.
7.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
7.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 7 shall remain in effect.
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
8.2 The price for the Goods shall be exclusive of any taxes and import duties which are levied when the delivery reaches the specified destination. The Buyer will be responsible for payment of any such taxes and import duties. Please note that the Company has no control over these charges and cannot predict their amount. The Buyer should contact their local tax or customs office for further information before placing the order.
9.1 Subject to condition 9.4, payment of the price for the Goods is due immediately unless a credit account is agreed prior to the date of invoice.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until the Company has received cleared funds.
9.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
9.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
9.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment.
9.7 If the Buyer fails to pay the Company in accordance with clause 9.1 above, the Company reserves the right to withdraw any account of the Buyer so that they may only deal in future on a pro forma basis.
10 Use of Goods and Quality
10.1 Company products are intended for professional research use only and are not to be used for any commercial purposes including the provision of services or use in diagnostic assays without written permission from Company.
THE PRODUCTS ARE NOT FOR THERAPEUTIC OR ANY OTHER USE IN HUMANS OR FOR ANY VETERINARY USES.
10.2 Product Resale Prohibited: In the absence of an express written agreement to the contrary, all products are sold by Company for the exclusive use of the purchaser and are not to be resold.
10.3 IN THE ABSENCE OF AN EXPRESS WRITTEN AGREEMENT TO THE CONTRARY, ALL ORGANOIDS ORIGINALLY PROVIDED BY COMPANY ARE FOR SINGLE USE ONLY IN RESEARCH ASSAYS OR EXPERIMENTS AND ARE NOT TO BE PASSAGED FOR FURTHER REPEATED USE OR FOR OTHER ORGANOID EXPANSION PURPOSES.
10.4 Furthermore, all organoids provided by Company are not to be sequenced or analysed in a way that could potentially identify the original donor of the tissue from which they are derived.
10.5 These restrictions do not apply to organoids provided by our Buyer’s and manufactured, expanded, and supplied as a service on their behalf.
10.6 The Buyer retains ownership for organoids, which the buyer has either generated or accessed through third parties, and has transferred to the Company for manufacture, scale up and supply services. The Company shall retain the Buyer’s organoids and protocols confidential and protect them from unauthorised use and shall conduct the Research under suitable containment conditions in the Company’s facilities with its designated employees. No onward culture of these organoids following completion of contracted service will be permitted by the Company (unless otherwise specified by the Buyer). All organoids will be destroyed and disposed of at the end of manufacture, scale up and supply services, following the local guidelines for biohazardous waste at the Company (unless otherwise specified by the Buyer).
10.7 For manufacture, scale up and supply services of HUB Organoids the Buyer has accessed and licensed from HUB Organoid™ biobank, the transfer of these organoids to the Company will be accompanied with a completed Material Transfer Form Letter (MTFL). The Buyer will send the MTFL to the Regulatory Affairs Dept at Stichting Hubrecht Organoid Technology ([email protected]) and to the Company to confirm transfer and shipment of HUB Organoids to the Company. The MTFL can be requested from the Company via communication methods stated in 17.
10.8 The Company warrants that (subject to the other provisions of these Conditions) on delivery, and for a period of shelf life and expiry dates mentioned on the product documentation, whichever is earlier, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
10.9 The Company shall not be liable for a breach of the warranty in condition 10.4 unless:
10.9.1 the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within five days of the time when the Goods were delivered to the Buyer; and
10.9.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there or, if appropriate, the Company examines the Goods at the Buyer’s place of business.
10.10 The Company shall not be liable for a breach of the warranty in condition 10.4 if:
10.10.1 the Buyer makes any further use of such Goods after giving such notice; or
10.10.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, use, maintenance, expiry date and application of the Goods or accidental damage by Buyer or (if there are none) good trade practice; or
10.10.3 the Buyer alters or modifies such Goods without the written consent of the Company.
10.11 Subject to condition 10.5 and condition 10.6, if any of the Goods do not conform with the warranty in condition 10.4 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
10.12 Any Goods replaced shall belong to the Company and replacement Goods shall be guaranteed on these terms.
11 Intellectual Property, Confidentiality and Data Protection
11.1 All intellectual property rights and all other rights in the Goods and any materials prepared or supplied by the Company in connection with the provision of the Goods shall remain the property of the Company.
11.2 All information supplied to the Buyer by the Company at any time in connection with the provision of the Goods shall be regarded as confidential and shall not without the prior written consent of the Company be published or disclosed to any third party. The obligations under this condition 11.2 shall survive notwithstanding termination or expiry of these Conditions.
12 Organoid Intellectual Property
THE GOODS ARE PROVIDED FOR RESEARCH USE ONLY. THE COMPANY RECOMMENDS THAT IF THE BUYER IS ENGAGED IN CONSIDERING USING ORGANOIDS FOR ANY COMMERCIAL WORK THAT THEY ASSESS THE INTELLECTUAL PROPERTY LANDSCAPE AND THE REQUIREMENT FOR ANY LICENSES FROM COMPANY OR OTHER THIRD PARTIES PRIOR TO ENGAGING IN ANY SUCH WORK. THIS MAY INCLUDE LICENSES FOR HUB ORGANOID TECHNOLOGY FROM THE STICHTING HUBRECHT ORGANOID TECHNOLOGY.
13 Limitation of liability
13.1 The Buyer shall not claim any direct, indirect, or consequential loss or damage arising out of, or in connection with, Company’s failure to provide the products or perform a service. Similarly, the Company shall have no liability for any direct, indirect, consequential or incidental damages arising out of the use of any product.
13.2 Subject to conditions 4.3, 6.2, 10, 13.2 and 13.3, the total liability of the Company to the Buyer whether in contract, tort, negligence, breach of statutory duty or otherwise for any direct loss or damage, costs or expenses arising under or in connection with these Conditions (including, without limitation, direct loss of business, direct loss of profit or other direct economic or financial loss or damage) shall not exceed the Contract Price.
13.3 Subject to condition 13.3, the Company shall not be liable to the Buyer whether in contract, tort, negligence, breach of statutory duty or otherwise for any indirect or consequential loss or damage, costs or expenses arising out of or in connection with these Conditions.
13.4 Nothing in these Conditions shall exclude or restrict the liability of the Company to the Buyer:
13.4.1 for death or personal injury resulting from the Company’s negligence; or
13.4.2 for fraud or fraudulent misrepresentation; or
13.4.3 in any other circumstances where the Company’s liability may not be so limited under any applicable law.
14.1 The Company may assign the Contract or any part of it to any person, firm or company.
14.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15 Force majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.2 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, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of The Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
16.7 Company has the right to revise and amend these T&Cs from time to time to reflect changes in market conditions affecting its business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in its system’s capabilities. The Buyer will be subject to the policies and terms and conditions in force at the time that they order products or commission services from the Company.
16.8 Ethical Considerations: Company conducts its activities in compliance with the applicable statutes, regulations and guidelines in the UK, including those that govern the prior, free and informed consent of original donors of human tissue and any related anonymised data.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email ([email protected]):
17.1.1 In case of communications to the Company, to its registered office, or such other address as shall be notified to the Buyer by the Company; or
17.1.2 In the case of communications to the Buyer, to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer
17.2 Communications shall be deemed to have been received:
17.2.1 If sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
17.2.2 If delivered by hand, on the day of delivery; or
17.2.3 If sent by email on a working day prior to 4.00 pm, at the time of transmission with read receipt checked.
17.2.4 Communications addressed to the Company shall be marked for the attention of:
18 Law and Jurisdiction
18.1 These Terms and Conditions are subject to the law of England and Wales. All disputes arising out of these Terms and Conditions shall be subject to the exclusive jurisdiction of the courts of England and Wales.