Conditions of Sale
Definitions and Interpretation: In these terms and conditions (Conditions), unless the context requires otherwise:Associated Company shall bear the meaning ascribed to it in relation to section 416 of the Income and Corporation Taxes Act 1988.
Buyer means the person, firm or company with whom the Contract is made.
Contract means this contract between the Buyer and the Seller for the sale and purchase of the Goods.
Seller means Lab M Limited, whose registered office is at Topley House, 52 Wash Lane, Bury BL9 6AS, United Kingdom.
Goods means the goods and/or services (or any instalment or part of them) to be sold or supplied pursuant to the Contract.
Order means an order placed by the Buyer on the Seller for the sale or supply of Goods by the Seller.
Words in the singular shall include the plural and vice versa, reference to any gender shall include the others and references to legal persons shall include natural persons and vice versa.
The headings in these Conditions are intended for reference only and shall not affect their construction.
1 General
1.1 All Goods sold to the Buyer are sold and/or supplied subject to these Conditions which shall be the sole conditions of any sale or supply by the Seller to the Buyer to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other statement or communication sent or made verbally by the Buyer to the Seller.1.2 The placing of an Order by the Buyer on the Seller is an acceptance of these Conditions.
1.3 Any amendment, variation or waiver of these Conditions requires acceptance in writing by the Seller.
1.4 No employee, representative or agent of the Seller has the authority to give any guarantee or warranty on behalf of the Seller or to transact business other than on the (unamended) terms of these Conditions.
1.5 The failure of the Seller to insist upon strict performance of any provision of the Contract by the Buyer shall not affect the Seller's right to enforce such provision later and shall not be construed as a waiver of it.
1.6 If, in any particular case, any of these Conditions shall be or be held to be invalid or shall not apply to the Contract the other Conditions shall continue in full force and effect.
2 Orders
2.1 No Order shall be binding on the Seller unless and until it has been accepted in writing by the Seller.2.2 The Seller reserves the right to make reasonable changes to the specification of the Goods which do not materially affect the quality or performance of the Goods and the Buyer shall be liable for the contract price notwithstanding such changes.
2.3 The Seller generally reserves the right at any time to discontinue the sale or provision of any Goods and to decline to accept orders for such in circumstances which the Seller considers appropriate.
3 Quotations
3.1 Quotations are for information purposes only and shall not be binding on the Seller.4 Prices
4.1 The price payable for Goods shall be the list price of the Seller current at the date of despatch or in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Seller current at the date of despatch of such instalment.4.2 All prices are exclusive of value added tax which will be charged by the Seller and will be payable by the Buyer at the appropriate rate.
4.3 All prices quoted by the Seller are based upon these Conditions and reflect the limitations upon the Seller's liability which they contain.
5 Delivery
5.1 The Goods will be delivered Ex Works (Incoterms 2000) unless otherwise agreed by the Seller in writing.5.2 If the Seller shall arrange for carriage on behalf of The Buyer, carriage shall be effected at The Buyer's risk and cost.
5.3 Time of delivery or performance shall not be of the essence of the Contract.
5.4 All times, dates or periods given for delivery of the Goods are given in good faith but without any responsibility on the Seller's part. In no circumstances shall the Seller be liable for any loss or damage sustained by the Buyer in consequence of failure to deliver within such time or by such date or in consequence of any other delay in delivery howsoever caused.
5.5 Where the Goods are handed to a carrier for carriage to the Buyer or to a United Kingdom port for export, any such carrier shall be deemed to be an agent of the Seller and not of the Buyer for the purposes of sections 44, 45 and 46 of the Sale of Goods Act 1979.
5.6 The Buyer agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Seller.
5.7 If, for any reason, the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Seller may, at its sole discretion and without prejudice to its other rights, dispose of the Goods; pass title (without any encumbrance in favour of the Buyer) in the Goods to a third party purchaser; and to retain the proceeds of sale which shall be set off against the invoice price for the Goods and any other sum payable hereunder in respect of which (for the avoidance of doubt) the Buyer shall remain liable.
5.8 The Seller shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the Contract shall be in addition to and not in derogation of this right.
6 Passing of title and risk
6.1 From the time of delivery in accordance with Condition 5, the Goods shall be at the Buyer's risk and the Buyer shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Seller's property until all payments to be made by the Buyer under the Contract and any other contract between the Seller and the Buyer and on any other account whatsoever, have been made in full and unconditionally. Whilst the Seller's ownership continues, the Buyer shall keep the Goods labelled as belonging to the Seller and separate and identifiable from all other goods in its possession as bailee for the Seller.6.2 The Buyer may only re-sell the Goods to the Buyer's customers in the ordinary course of the Buyer's business as a fiduciary and trustee for the Seller. In the event of any resale by the Buyer of the Goods, the Sellers' beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to the Seller and, until such assignment, shall be held on trust in a separate identified account for the Seller by the Buyer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Seller's moneys.
6.3 Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract the Seller shall have power to re-sell the Goods, such power being addition to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise, and for such purpose the Seller and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods. 6.4 Pending payment of the full purchase price of the Goods, the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Buyer, in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Seller's interest.
7 Terms of payment
7.1 Unless otherwise agreed in writing, the Buyer shall pay for the Goods in cash in Sterling within 30 days of the date on the invoice. Payment shall become due in any event forthwith upon the occurrence of any of the events referred to in Condition 12 below.7.2 The price of the Goods shall be due in full to the Seller in accordance with the Contract and the Buyer shall not be entitled to exercise any set-off, lien or any other similar right or claim. Whenever under the contract any sum of money shall be recoverable from or payable by the Buyer, the same may be deducted by the Seller from any sum then due or which at any time thereafter may become due to the Buyer under this or any other contract with the Seller (or any other member of the International Diagnostics Group Limited group of companies from time to time). Exercise by the Seller of its rights under this Condition shall be without prejudice to any other rights or remedies available to the Seller under the Contract, or otherwise howsoever, at law or in equity.
7.3 The time of payment shall be of the essence of the Contract.
8 Conditions and warranties
8.1 The Contract shall not constitute a sale by description or sample.8.2 Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Seller) or as to the correspondence of the Goods with any description or sample are hereby expressly negated.
8.3 The Buyer shall ensure that it complies or (if appropriate) that its customer complies with: (a) all local laws which may apply to the Goods, their sale, disposal, use or performance in the territory in which they are sold or are to be delivered, used or performed; and (b) all recommendations made by the Seller and all laws, regulations and orders which may apply in the territory in which the Goods are to be used and which relate to health and/or safety.
8.4 And accordingly the Buyer agrees to indemnify the Seller and to keep the Seller fully and effectually indemnified from and against all direct and indirect losses, costs, claims, damages, liabilities and expenses which the Seller may suffer or incur as a result of the failure by the Buyer, its customer or any of their respective employees, servants or agents to comply with such laws and instructions as aforesaid and whether or not such losses or the consequences of the Buyer's failure were foreseeable at the relevant time.
9 Defective Goods
9.1 In substitution for all rights which the Buyer would or might have but for these Conditions, the Seller undertakes, in the case of Goods manufactured or supplied by the Seller, that if a defect in materials or workmanship appears therein, being a defect which would not be obvious on reasonable inspection of the Goods (whether such an inspection was carried out or not), it will, at its own discretion, either credit to the Buyer the full price paid by the Buyer to the Seller for such item, or repair it or supply a replacement thereof, free of charge, at the place of delivery for the original Goods, provided that in any case:(a) the defect has not arisen from fair wear and tear, wilful damage, negligence, abnormal working conditions or environment, improper use, misuse or alteration or repair of the Goods;
(b) the Goods have been stored in accordance with the instructions of the Seller and in the case of consumables the lesser of 12 months from delivery or the expiry date has not passed;
(c) the Goods have not been used whilst allegedly defective or in need of repair;
(d) no person other than the Seller has attempted to dismantle or repair the Goods;
(e) the Buyer shall notify the Seller within 7 days of the date upon which such defects appeared or ought reasonably to have been discoverable and provide a detailed written account of the nature of the defect and the conditions under which such defect occurred;
(f) the Buyer shall, within 7 days of a request by the Seller, shall return the defective Goods carriage paid, to the Seller; or, at the Seller’s discretion, give the Seller all reasonable access to its premises in order to investigate such defects and to inspect and test such Goods, and the Seller shall be satisfied that such defect is evident; and
(g) the original Goods have been accepted and paid for in full by the Buyer.
9.2 In the case of Goods not manufactured by the Seller, the Seller will pass on to the Buyer, to the extent that it is able, any benefits obtainable under any warranty given by the Seller's supplier, provided that the Goods concerned have been accepted and paid for.
9.3 Nothing in these Conditions shall impose any liability upon the Seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, its servants or agents, including in particular (but without prejudice to the generality of the foregoing) any failure by the Buyer to comply with any recommendation of the Seller as to use, storage and handling of the Goods.
9.4 Where the Goods are for delivery by instalments, any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
10 Liability
10.1Nothing in these Conditions shall exclude or limit the liability of the Seller for death or personal injury resulting from the negligence of the Seller or any of its officers, employees or agents or the liability of the Seller for fraud in so far as the same is prohibited by United Kingdom statute.10.2 The Buyer agrees that the Seller shall not be liable for:
(a) any error, mistake or omission in any documentation issued by the Seller to the Buyer, and shall be subject to correction by the Seller; or
(b) imperfect work caused by any inaccuracies in any drawing, bill of quantities or specification supplied by the Buyer.
10.3 Subject to Conditions 10.1 and 10.2, the maximum aggregate liability of the Seller (whether in contract, tort or for negligence or breach of statutory duty or otherwise arising out of, or in connection with, the Contract) to the Buyer in respect of any and all acts, omissions, defaults or events shall be limited to and in no circumstances shall exceed the price of the Goods giving rise to the liability in question.
10.4 The Seller shall in no circumstances be liable (whether in contract, tort or for negligence or breach of statutory duty or otherwise arising out of, or in connection with, the Contract) to the Buyer to the extent that such liability:
(a) is calculated by reference to profits, income, production or accruals or loss of business, loss of data, loss of profits, loss of goodwill, loss of anticipated savings, loss of revenue;
(b) arises from any inaccuracies or omissions in any instructions, information, drawings, calculations, or specifications or material supplied by the Buyer to the Seller;
(c) is of an indirect or consequential nature;
(d) is recovered by the Buyer under the terms of any insurance policy (apart from any excess applicable to the relevant insurance); or
has been made good or is otherwise compensated without cost to the Buyer.
10.5 No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to delivery, or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract, (being a defect, inherent defect or loss, damage or non-compliance which would be obvious upon a reasonable inspection of the Goods) or for non-delivery, will attach to the Seller unless claims to that effect are notified in writing by the Buyer to the Seller (and in the case of claims for loss, damage or non-delivery, with a copy to the carrier if the Seller's own vehicles have not been used to deliver the Goods):
(a) within 7 days of delivery, in the case of loss, damage, defect or noncompliance with the Contract ;or
(b) within 10 days of the date of the invoice, in the case of non-delivery.
10.6 In the event of a valid claim for defect, defective performance, loss, damage or non-compliance with the Contract or non-delivery, the Seller undertakes, at its option, either to reprocess or replace the items concerned, at its expense but shall not be under any further or other liability in connection with such non-delivery, nonperformance, defective performance, loss, damage or non-compliance.
10.7 If the Buyer shall fail to give notice in accordance with Condition 10.5, the items delivered shall be deemed to be in all respects in accordance with the Contract and, without prejudice to earlier acceptance by the Buyer, it shall be bound to accept and pay for the same accordingly and all claims in respect of nondelivery, non-performance, defective performance, loss, damage, defect or noncompliance shall (save as set out in Condition 9) thereafter be wholly barred.
11 Additional costs
The Buyer shall indemnify the Seller against all actions, suits, claims, demands, costs, charges, damages, losses and expenses suffered or incurred by the Seller and/or for which it may be liable to any third party due to, arising from or in connection with, directly or indirectly: (a) The Buyer's instructions or lack of instructions; or (b)any failure or delay whatsoever in taking delivery or any other act, neglect or default on the part of the Buyer, its servants, agents or employees; or (c) the breach of any provision of the Contract by the Buyer; or (d) the possession, use or modification of the Goods, or the mixing of the Goods with other products or materials by the Buyer12 Default or insolvency of the Buyer
If the Buyer shall be in breach of any of its obligations under the Contract or any other contract between the Buyer and the Seller or any Associated Company of the Buyer; or if any distress or execution shall be levied on the Buyer's property or assets; or if the Buyer shall make or offer to make any arrangement or composition with its creditors or commit any act of bankruptcy; or if any bankruptcy petition be presented against it or (if the Buyer is a company) if any resolution or petition to wind up such company shall be passed or presented; or if a receiver, administrative receiver or administrator of the whole or any part of such company's undertaking, property or assets shall be appointed or the Buyer shall suffer any similar process under the laws of its domicile and without prejudice to any other right or claim, may, by notice in writing, determine, wholly or in part, any and every contract between the Seller and the Buyer or may (without prejudice to the Seller's right subsequently to determine the Contract for the same cause, should it so decide) by notice in writing suspend delivery or any further deliveries or performance (as the case may be) of Goods until any default by the Buyer has been remedied.13 Force majeure
The Seller shall be entitled to delay or cancel delivery or performance or to reduce the amount of Goods delivered or performed if and to the extent that it is prevented from or hindered in or delayed in performing, manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including (but not limited to) strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.14 Intellectual property
14.1 The Buyer shall indemnify the Seller against all costs, claims, losses, expenses and damages incurred by the Seller or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trade or service marks, copyright, design right or other intellectual property right occasioned by the importation, manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.The Buyer shall promptly give notice in writing to the Seller in the event that it becomes aware of any claim that the Goods infringe the rights of any third party and shall: (a) not make any admission to any such third party without the consent of the Seller; and (b) at the request of the Seller, permit the Seller or its duly authorised representative to conduct and/or settle all negotiations and litigation and give to the Seller all reasonable assistance in relation thereto.
Unless otherwise agreed in writing between the parties, the Buyer acknowledges that all copyright and all other intellectual property rights (including without limitation, design rights, registered designs, patents, trademarks and know-how) arising out of or in connection with the sale of Goods belongs to and shall remain vested in the Seller.
