The buyer's attention is in particular drawn to the provisions of conditions 6.4, 9.2, 10.2 and 10.4.
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 TwistDx Limited;
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these terms and conditions;
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4;
“Goods” means any goods (including, for the avoidance of doubt, any Kit or Manual) agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
“Information” means all written information supplied as part of a Kit, information relating to the Kit made available through TwistDx’s website, and any verbal or written information concerning the Kit or its use provided by any employee or agent of TwistDx;
“Kit” means the items described in a Manual;
“Manual” means the manual supplied by TwistDx to a Buyer; and
“Materials” means all biological and chemical materials supplied as part of the Kit.
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 The Company submits all quotations and accepts all orders from the Buyer subject to these terms and conditions of sale and supply and, subject to any variation under condition 2.3, these terms and conditions shall govern and form part of every Contract 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), whether express or implied.
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 terms and 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 Niall Armes of the Company. For the avoidance of doubt, the Company’s sales representatives and staff are not authorised to agree or make any variation to these terms and conditions.
2.4 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.
2.5 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 terms and conditions.
2.6 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acceptance of order notice, which may include email or facsimile, is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.7 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.8 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acceptance of order notice to the Buyer. Any quotation is valid for a period of 30 days only from its date, 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 acceptance of order notice.
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 and this is not a sale by sample.
4.1 Delivery of the Goods shall take place at either of: (i) the Company's place of business; or (ii) the Buyer’s nominated premises. If delivery of the Goods is to take place at the Company’s place of business, the Buyer shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery.
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 Provided that title in the Goods has not passed to the Buyer, the Company reserves the right to refuse to deliver any order if the Buyer does or threatens to: have a bankruptcy order made against him or make an arrangement or composition with his creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed in respect of its undertaking or any part thereof, or file documents with the court for the appointment of an administrator of the Buyer or give notice of intention to appoint an administrator 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 pass a resolution a petition to be 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 suffer the commencement of any proceedings relating to the insolvency or possible insolvency of the Buyer or if anything substantially similar to the foregoing occurs under the insolvency laws of any foreign jurisdiction to which the Buyer is subject.
4.4 Subject to the other provisions of these terms and conditions, 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.
4.5 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:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) 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).
4.6 If the Company delivers to the Buyer a quantity of Goods of up to % more or less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.9 The Company will not accept the return of unwanted Goods correctly delivered in satisfaction of an order. The Buyer agrees and acknowledges that the supply of Goods will start as soon as the Company has despatched an acceptance of order notice to the Buyer and that the Buyer cannot have recourse to the Consumer Protection (Contracts Concluded by Means of Distance Communications) Regulations 2000 to cancel any Contract once Goods have been delivered in either whole or partial fulfilment of the relevant Contract.
5.1 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.
5.2 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 14 days of the date when the Goods would in the ordinary course of events have been received.
5.3 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.
6. Risk / Title; Limitations on Use
6.1 The Goods are at the risk of the Buyer from the time of dispatch to the Buyer’s nominated premises or from the time of collection by the Buyer from the Company’s premises, whichever is the earlier.
6.2 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:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) 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.
6.4 The Buyer acknowledges and agrees that the Materials and Information are proprietary to the Company and may be covered by claims of patents or patent applications of the Company. The Goods are sold subject to the following restrictions:
(a) the Materials and Information are non-exclusively licensed to the Buyer solely for non-commercial internal research purposes.
(b) the Materials and Information must not be used for any commercial purposes or to provide services to any third party;
(c) the Buyer must not re-package or re-sell the Materials or Information;
(d) the Buyer acknowledges that the Materials are experimental in nature and may have properties that are not fully understood. Accordingly, the Buyer agrees not to use the Materials or derivatives thereof for any in vivo testing or for any clinical diagnostic purposes whatsoever for animals or humans;
(e) the Buyer shall use the Materials and Information strictly in compliance with all applicable laws, regulations and guidelines.
The Company reserves all intellectual property rights in and to the Material and Information, subject only to the license set forth above.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
(a) 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 in respect 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
(b) 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
(c) the Buyer encumbers or in any way charges any of the Goods; or
(d) the foregoing occurs under the laws of any foreign jurisdiction to which the Buyer is subject.
6.6 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.
6.7 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.
6.8 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.
6.9 On termination of the Contract, howsoever caused, the Company's (but not the Buyer's) rights contained in this condition 6 shall remain in effect.
7.1 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. The Company’s prices are subject to alteration without notice.
7.2 The price for the Goods shall be exclusive of any value added tax or other taxes applicable and shall also be exclusive of all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods. The Company reserves the right to make additional charges for all special and urgent deliveries and all deliveries outside of the European Union and the United States of America.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds sterling, U.S. dollars or Euros as follows:
(a) in advance of delivery, if orders are accepted on a pre-payment basis; or
(b) within 30 days of the date of invoice. The Company reserves the right to withdraw these credit terms at any time without notice.
8.2 Time for payment shall be of the essence. The Buyer shall notify the Company of any invoice discrepancy within 14 days of receipt of an invoice after which time the invoice shall be deemed accepted by the Buyer.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 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.
8.6 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 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.7 The Company reserves the right to withhold delivery of subsequent orders where the Buyer’s account is overdue or the Company has doubts (it its sole discretion) about the creditworthiness of the Buyer. In such cases, the Company shall have the right to release any Goods ordered or reserved by the Buyer.
8.8 The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order.
9. No Warranty; Product Recall
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company makes no warranty with respect to the Goods expect as may be set forth in writing in a document accompanying the Goods (if any), of which such document an advance copy shall be available for review upon request.
THE BUYER UNDERSTANDS AND AGREES THAT THE MATERIALS ARE EXPERIMENTAL IN NATURE AND THAT GOODS ARE PROVIDED WITHOUT ANY WARRANTY AS TO RESULTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT, AND WITHOUT ANY OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, EXCEPT AS STATED IN THE PRECEDING SENTENCE.
9.3 Furthermore, the Company shall not be liable for a breach of any warranty (if any) unless:
(a) the Buyer gives written notice of a defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 14 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) 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.
9.4 In addition, the Company shall not be liable for a breach of any warranty if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with any warranty as may be provided for, 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.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of any warranty in respect of such Goods.
9.7 In the event of a product recall, the Buyer agrees to cooperate with the Company in taking all necessary steps to remove the relevant Goods from the market place.
10. Limitation of Liability
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. THE BUYER AGREES AND UNDERSTANDS THAT ITS USE OF THE GOODS IN CONNECTION WITH ITS ACTIVITIES IS ENTIRELY AT ITS RISK.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company's negligence; or
(b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price or to one hundred dollars (US$100), whichever sum is the lower, even if such losses result from the Company’s deliberate personal repudiatory breach of this agreement; and
(b) the Company shall not be liable to the Buyer in relation to the Contract or any breach thereof under any contract, negligence, strict liability or other theory for loss of revenues, loss of profit, loss or interruption of business, loss or inaccuracy of data (including test results) or depletion of goodwill, regardless of how such damages are characterised and in each case whether special, direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused), including the cost (including procurement costs) of substitute goods, services or technology, which arise out of or in connection with the Contract.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
The Buyer agrees to indemnify and hold the Company harmless from and against any claims, costs, expenses or damages arising out of:
(a) the improper use, misuse or neglect of the Goods or any breach of these terms and conditions or the Contract or default on the part of the Buyer; or
(b) any use, production or sale of goods manufactured by the Buyer which incorporate any Goods supplied to the Buyer.
13. 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 (whether declared or undeclared) 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 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 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.
14.2 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.
14.3 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.
14.4 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.
14.5 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.
14.6 The 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.
15.1 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 fax:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the 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.
Communications shall be deemed to have been received:
(c) 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
(d) if delivered by hand, on the day of delivery; or
(e) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
15.2 Communications addressed to the Company shall be marked for the attention of Helen Kent-Armes