NEW ENGLAND BIOLABS (UK) LIMITED - TERMS AND CONDITIONS OF SALE
1 DEFINITIONS AND INTEPRETATION
1.1 In these conditions the following terms unless the context otherwise requires have the following meanings:
Buyer: any individual, firm, company or other legal person who purchases or attempts to purchase Products from NEB;
Catalogue: any catalogue of Products issued by NEB from time to time;
Contract: any contract for the purchase of Products from NEB by the Buyer, which shall be subject to these Conditions;
NEB: New England Biolabs (U.K.) Limited (Company Number 02833761) whose principal place of business is at 75-77 Knowl Place, Wilbury Way, Hitchin, Herts SG4 0TY, United Kingdom;
Products: any and all reagents and other products sold by NEB from time to time as advertised in the Catalogue or Website.
Specification: the specification for any Products as submitted by NEB or made available on the Website or in the Catalogue.
Website: www.neb.uk.com or any successor website of NEB.
1.2 In these Conditions unless the context otherwise requires headings are used for convenience only and shall not affect their interpretation; references to persons include incorporated and unincorporated persons; references to the singular include the plural and vice versa and references to clauses mean to clauses in these Conditions.
2 ORDER FULFILMENT
2.1 Subject to any variation under clause 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions, whether express or implied, written or verbal (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions alluded to, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract or submitted by the Buyer to NEB whether deliberately or incidentally. Moreover, any failure by NEB to reject any such other terms or conditions expressly will not constitute an acceptance of them or waiver of these Conditions.
2.3 These Conditions apply to all NEB's sales of Products and any variation to these Conditions and any representation concerning the Products (whether written or verbal, including in any instructional, marketing or promotional material) shall have no effect unless expressly agreed in writing and signed by a director or other authorised representative of NEB, provided that nothing in this clause will exclude or limit NEB's liability for fraudulent misrepresentation.
2.4 Each order for Products submitted by the Buyer to NEB shall be deemed to be an offer by the Buyer to purchase Products subject to these Conditions.
2.5 All orders are subject to acceptance and availability and NEB shall not be obliged to accept any order. No order placed by the Buyer shall be deemed accepted by NEB until a written or e-mail acknowledgement of order is issued by NEB or (if earlier) NEB delivers the Products to the Buyer.
2.6 The Buyer must ensure that the terms of its order and are complete and accurate.
2.7 The Buyer confirms that it is acting in the course of business and is not ordering the Products as a consumer as such term is defined in the Consumer Protection Act 1986.
2.8 Any quotation issued by NEB is given on the basis that no contract will exist until the Seller dispatches an acknowledgement of order to the Buyer. Unless otherwise agreed in writing, any quotation is valid for a period of 30 days only from its date, provided that NEB has not previously withdrawn it.
2.9 NEB cannot guarantee that Products advertised on the Website or in the Catalogue will be available when ordered.
2.10 The Buyer confirms that it is lawfully entitled to purchase the Products and if applicable import them to the address specified in the order. The Buyer furthermore undertakes to comply with the control laws and export regulations of the EU, the USA and any other relevant jurisdiction in force from time to time and with NEB's export policy regarding the ultimate destination of Products and to impose an equivalent obligation on its customers and distributors.
3 CANCELLATION & RETURNS
3.1 The Buyer may not cancel any order or return Products delivered unless they have not been delivered or, if delivered, they are returned unopened and unused. In such event, subject to compliance with clause 3.2, a refund of the invoiced price will be given.
3.2 For a refund Products must be returned no later than 14 days after delivery:
3.3.1 with both goods and all packaging in their original condition;
3.3.2 securely wrapped;
3.3.3 including NEB's dispatch note;
3.3.4 at the Buyer's risk and cost using a registered method of delivery;
3.3.5 fully in compliance with the shipping conditions submitted to the Buyer; and
3.3.6 if so requested by NEB, accompanied by a decontamination certificate.
4 DELIVERY OF PRODUCTS
4.1 Delivery shall be made to the address specified in Buyer's order. NEB will, unless otherwise stated, arrange carriage and freight (as the case may be) and insurance against loss or damage in transit. Risk in the Products will pass to the Buyer at the time of delivery or if the Buyer, its servant or agent fails to take delivery of the Products, at the time when NEB has tendered delivery of the Products.
4.2 NEB may make delivery by installments, in which case all such installments may be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of, or any other breach affecting, any installment shall not relieve the Buyer of its obligations to accept subsequent deliveries.
4.3 Immediately upon receiving any Products, the Buyer shall inspect the same and shall notify NEB in writing at email@example.com of any claims for shortages, defects or damage and shall hold the Products pending the NEB's written instructions. If the Buyer fails to so notify NEB within five working days after the Products have been received by the Buyer, such Products shall conclusively be deemed to conform to the Contract and to have been irrevocably accepted by the Buyer.
4.4 Although NEB shall use all reasonable efforts to meet the anticipated delivery date, any such date is an estimate only and accordingly time for delivery shall not be of the essence.
4.5 Acceptance and completion of orders are subject to NEB possessing all necessary consents, licences, authorisations and approvals required for the purpose of the supply of the Products ('Consents'). If at any time NEB is not in possession of any Consents it shall be entitled (without liability to the Buyer) to cancel the Contract by written notice.
4.6 NEB shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller's reasonable control, including, without limitation, any act of or failure to act by the Buyer, downtime or failure of any third party web portal through whom NEB advertises, sells or invoices Products ("Portal"), embargo or other governmental act, any law, regulation, investigation or audit affecting NEB's business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other industrial issues, lightning, flood, storm or other acts of God, delay in transportation, or inability to obtain necessary personnel, fuel, materials supplies or facilities.
5 TAXES AND OTHER CHARGES
5.1 Any value added tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, arising out of or in connection with the sale of the Products shall be paid by the Buyer. If NEB is required to pay any such sum the Buyer shall reimburse NEB promptly on demand or, when submitting its order, submit an exemption certificate or other document acceptable to the authority imposing the payment.
6 PRICE AND PAYMENT
6.1 If any price increases from those given on the Website or in the Catalogue, NEB will not dispatch the Products until the Buyer has agreed to the new price. If applicable, shipping and carriage charges will be invoiced in addition and show as separate items on the invoice.
6.2 Payment for the Products must be made in the manner required by the Website, Catalogue or Portal (as applicable). Unless clause 6.3 applies, payment must be received in full before Products are delivered.
6.3 Customers that have a credit account with NEB may elect to pay by invoice. In such event:
6.3.1 A valid and approved purchase order number from the Buyer must be provided with the order.
6.3.2 Products will only be dispatched if the credit account is in good standing having not exceeded any credit limit set by NEB, or where there are payments outstanding that exceed the terms outlined in clause 6.4 below.
6.3.3 Payment of the price of the products is due 30 days after the date of invoice, unless otherwise stated. Time of payment shall be of the essence. If any sum remains unpaid in full by its due date:
(a) The Buyer shall pay interest on the outstanding amount, before and after judgment, at a rate of 5% above the base rate of Barclays Bank plc in the UK, calculated annually but accruing on a daily basis 9 or such higher rate as is allowed by law);
(b) NEB may without liability to the Buyer suspend all further deliveries to the Buyer and shall, on written notice, forthwith suspend the credit facility extended under this clause 6.3; and
(c) NEB may exercise its rights under clause 7.
6.3.4 Payment shall be in the currency nominated by NEB. Where payment is made by bank transfer the Buyer shall pay all bank charges (receiver's as well as remitter's).
7 RETENTION OF TITLE
7.1 So long as any amounts whatsoever (whether immediately due or not) remain owing from the Buyer to NEB, title to and property in any Products supplied will remain with NEB and will not pass to the Buyer until NEB receives such amounts in full. Until then the Buyer shall: (a) hold the Products as NEB's bailee; (b) store them separately and clearly identifiable from other goods in its possession; (c) ensure that no charge, lien or other encumbrance is created over them; (d) promptly deliver them up to NEB upon demand or grant NEB full access to any premises containing them so that they can be recovered.
7.2 If the Buyer has sold or otherwise parted with possession of any of the Products before NEB has received payment in full, the Buyer shall hold the proceeds of sale (or in the case of payment not having been made the debt owed to the Buyer by its buyer) up to the amount or value of the Buyer's debt as agent and trustee for the Seller and pay it NEB on demand.
8 WARRANTIES AND LIABILITY
8.1 Save as provided in clause 8.3, NEB warrants that, provided that they are unopened, Products shall for a period of three (3) calendar months from delivery conform materially to the Specification. However, NEB reserves the right without notice to vary the Specification as long as this does not materially affect the quality or performance of the Products. This warranty in substitution of and (to the extent permitted by English Law) to the exclusion of all other conditions and warranties, whether as to merchantability, quality or fitness for any particular purpose, freedom from infringement or otherwise and whether express or implied by statue, common law or otherwise. Furthermore, this warranty extends only to the Buyer. To claim under the warranty the Buyer must inform NEB in writing within 14 days of discovering the defect and return the Products in question to NEB.
8.2 NEB shall not be liable under the warranty in clause 8.1 if the Products or their packaging suffer deliberate or accidental damage, if they have not been stored in accordance with the instructions contained in the delivery note, if the Buyer has misused the Products in any manner, has failed to use, store or transport the Products in accordance with industry standards and practices, or has failed to use the Products in accordance with any instructions given by NEB or these Conditions or fails to comply with the Delivery Conditions, or if a third party does any of the aforesaid.
8.3 Subject to clause 9.1, if the Products comprise Cell Signaling Technology (CST) and the antibody that does not perform as advertised, NEB gives no warranty in connection therewith but, as an authorized distributor of CST, passes on to the Buyer the benefit of the guarantee (which the Buyer acknowledges it has read and understands) found at:
8.4 Subject to clause 9.1, NEB's sole and exclusive liability and Buyer's exclusive remedy if Products prove to be defective or non-conforming to the warranty in clause 8.1 shall be replacement of such Products without charge or a refund of the purchase price.
9.1 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 Conditions are subject to such proviso):
a) NEB's entire liability arising out of or in connection with any Products is limited to the invoiced value of the Product(s) in connection with which such liability is alleged to have arisen; and
b) NEB shall be in no manner liable for any indirect or consequential loss, including without limitation loss of business or goodwill, loss under current or future contracts, economic loss, disaster recovery costs or administrative costs, even if NEB has been advised of the likelihood of any of the aforesaid applying.
9.2 The Buyer may be using the Products for research which is novel or not approved or contemplated by NEB. Accordingly, test DNA may not give an accurate indication of how Products will perform or whether the results of tests will be accurate or efficacious. Accordingly, subject to clause 9.1, NEB shall be in no manner liable for how the Buyer uses the Products or for any loss or liability arising out of or in connection with reliance on results generated from tests using them. NEB's liability is furthermore limited and excluded as per the disclaimers in the section headed "Legal and Disclaimers" in the description of the Products which accompanies them and is also found on the Website and the Catalogue.
10 BUYER'S USE OF PRODUCTS
10.1 The Products are intended for laboratory research purposes only (as detailed in the limited use statement or limited label licence on them) and, unless otherwise stated on Product labels, in NEB's catalogue or in other materials supplied to the Buyer by NEB, 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 ("Precluded Uses"). They may not be resold or otherwise passed on to third parties without NEB's prior written consent.
10.2 The Buyer furthermore undertakes to properly test and use the Products in compliance with all relevant legal, regulatory and ethical requirements and with the applicable Material Data Safety Sheets.
11 BUYER'S INDEMNITY
11.1 The Buyer agrees to indemnify and hold harmless NEB, its employees, agents, successors, officers, licensees, subcontractors and assigns, from and against any and all damages, claims, demands, liabilities, costs and expenses (including reasonable attorneys' fees) that NEB may incur arising out of or in connection with the use of the Products by the Buyer or any third party or any breach of the Buyer's obligations under the Contract.
12 INTELLECTUAL PROPERTY
12.1. The Buyer acknowledges and agree that all intellectual property rights in the Products and in any NEB technology, intellectual property and know-how used to make or useful for the manufacture or use of the Products will at all times remain vested in NEB and its licensors. Unless otherwise expressly agreed in writing by NEB's authorised representative, the Buyer's purchase of the Products only grants the Buyer a limited, non-exclusive, non-transferable, non-sub-licensable right to use the quantity of the Products purchased for internal research purposes only, and in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in the Catalogue, on the Website or on the label or other documentation accompanying the Products (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety).
13 BUYER'S INFORMATION
13.1 The Buyer 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.
13.2 If the Buyer purchases Products via the Website or a Portal, it shall comply with any additional contractual terms in connection therewith and keep its password and other log-in details confidential. NEB shall be in no manner liable for any loss or liability arising out of or in connection with unauthorised personnel accessing the Buyer's account unless caused by NEB's negligence.
13.3 NEB may without liability to the Buyer deny the Buyer access to any Website account of the Buyer.
14.1 NEB's failure to enforce any term or condition of or exercise any of its rights under the Contract shall not prelude it from subsequently enforcing any such terms or condition or exercising such right.
14.2 All rights and remedies under the Contract are cumulative and are in addition to any other rights and remedies of NEB at law or in equity.
14.3 If any of these Conditions is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
14.4 The Contract shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, representatives, successors and assigns.
14.3 The Contract is not for the benefit of any third party and none of these Conditions will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 or any foreign equivalent legislation by any person that is not a party to it.
14.4 The Buyer may not assign, transfer, sub-license, delegate or subcontract the Contract or any part of it without the prior written consent of NEB.
14.5 NEB may assign, transfer, delegate, transfer, sub-license or delegate the Contract or any part of it.
14.6 Day to day communications between the parties may be by telephone or email. However, formal notices under the Contract must be served by facsimile or registered post (air mail into or out of the UK) to the recipient party's fax number or address as given in NEB's order confirmation and shall be deemed received:
(a) in the case of fax, when sent, subject to there being evidence of successful transmission;
(b) in the case of post within the UK, 2 business days after posting; and
(c).in the case of air mail, 7 business days after posting.
15 LAW AND JURISDICTION
15.1 The place of performance of the Contract is England and its conduct and interpretation and all disputes arising out of or in connection with it shall be governed by the laws of England. Any such dispute shall be subject to the exclusive jurisdiction of the English courts, provided that NEB may apply for an injunction or other interim relief and enforce a judgment awarded it by the English courts in any court of competent jurisdiction.
Guidelines for Safe Use of the Products
New England Biolabs recommends that the buyer and other persons using this product follow the Guidelines for Research involving Recombinant DNA Molecules (NIH guidelines) Federal Register, July 5, 1994 (59 FR 34496) and any amendments thereto. New England Biolabs disclaims any and all responsibility for any injury or damage which may be caused by the failure of the buyer or any other person to follow said guidelines.
Notice to Buyer/User
Information presented herein is accurate and reliable to the best of our knowledge and belief, but is not guaranteed to be so. Nothing herein is to be construed as recommending any practice or any product in violation of any patent or in violation of any law or regulation. It is the user's responsibility to determine for himself or herself the suitability of any material and/or procedure for a specific purpose and to adopt such safety precautions as may be necessary.
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