Sales Terms & Conditions

Scientifica Ltd - UK Terms and Conditions of quotation and sale for goods and services

1. INTERPRETATION

1.1 In these terms (“Terms”):

“AO” means the acknowledgement of order form (if any) issued by the Seller to the Buyer;

“Applicable Warranty Period” means, (a) in relation to any Goods manufactured by the Seller , the warranty period applicable to those Goods, subject to clauses 7.3 and 7.4, being either (i) twenty four (24) months commencing on the sooner of the date of acceptance of the Goods in question by the Buyer in accordance with clauses 6 and 14 or ninety (90) days from shipment of the Goods in question; or (ii) as otherwise notified in the Seller’s relevant quotation or AO; and (b) in relation to Services, subject to clauses 7.3 and 7.4 being either (i) the period of ninety (90) calendar days from the date of performance of the Services; or (ii) as otherwise notified in the Seller’s relevant quotation, AO or Service Plan Information Sheet; and (c) in relation to any Goods manufactured by a third party twelve (12) months commencing on the sooner of the date of acceptance of the Goods in question by the Buyer in accordance with clauses 6 and 14 or ninety (90) days from shipment of the Goods in question; 

“Buyer” means the Buyer of the Goods as stated in any applicable AO;

“Commencement Date” means the date on which the Services are to commence as set out in any Service Plan Information Sheet or AO; 

“Contract” means the agreement between the Buyer and the Seller for the supply of the Supplies and consisting of the documents referred to in clause 1.4 below; “Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

“End User Undertaking” means the document in the form provided by the Seller to the Buyer in relation to Goods to be shipped by the Seller outside the UK;

“Engineer” or “Personnel” means an individual engaged or employed by the Seller to perform the Services;

“Goods” means the  systems or goods or equipment or rig listed in the AO or which the Seller otherwise agrees to supply to the Buyer under the Contract (including any instalments or parts of the goods, variations or alternatives, but excluding any Serviced Goods or parts or components provided to the Buyer in respect of Serviced Goods);

“Initial Period” means the initial period for which the Seller shall provide Services comprising a Service Plan as set out in any applicable quotation and/or AO or Service Plan Information Sheet;

“liability in relation to” means liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with;

“Non-standard Specification” means any specification relating to the Goods or the formatting or layout of the Goods at the Buyer’s premises requested by the Buyer which deviates from the Standard Specification;

“Price” means, subject to these Terms, the price for the Supplies as quoted and confirmed in any AO;

“Rental Equipment” means any equipment rented by the Seller to the Buyer as part of the Services;

“Seller” or “Scientifica” means Scientifica Ltd whose trading address is Kingfisher Court, Bellbrook Industrial Estate, Brambleside, Uckfield TN22 1QQ, England;

“Services” means the services, including any Service Plan, specified in the Seller’s relevant quotation, AO or Service Plan Information Sheet or which the Seller otherwise agrees to provide to the Buyer under the Contract;

“Service Plan” means a service plan provided by the Seller for Serviced Goods;

“Serviced Goods” means the goods and/or systems (as appropriate) and any configuration thereof listed in the Seller’s relevant quotation, AO or Service Plan Information Sheet;

“Service Plan Information Sheet” means the document issued by the Seller to the Buyer detailing the services to be provided by the Seller to the Buyer for Serviced Goods under a Service Plan;

“Software” means any software used in the operation of the Goods;

“Standard Specification” means the standard design of the Goods and/or layout of the Goods (prior to any Non-Standard Specification requested by the Buyer) which is current at the time of the issue of an AO;

“Supplies” means the Goods and/or the Services; and

“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2       Any Contract provision invalid or unenforceable for any purpose shall be severed for that purpose but otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.

1.3       A payment shall be deemed made when credited to the payee's bank account and is cleared funds.

1.4       Save as otherwise agreed in writing by the Seller, the Contract shall comprise solely these Terms, any AO, any relevant quotation and any relevant Service Plan Information Sheet issued by the Seller to the Buyer.  In the event of any inconsistency the following shall prevail in this order (1) the express terms of the AO; (2) quotation; (3) the Service Plan Information Sheet; and (4) these Terms.  Variations of the Contract shall be effective only if agreed in writing and will then prevail over these Terms.

1.5       English is the authentic text of the Contract and all notices or other communications under or relating to it shall be in writing in English.  Any translation will be for guidance only.

2. QUOTATIONS, SPECIFICATION, VARIATION AND CANCELLATION

2.1       A quotation is not an offer and may be withdrawn or modified;  save as otherwise agreed in writing by the Seller, no contract or commitment shall exist until the Seller sends its AO and/or Service Plan Information Sheet to the Buyer or until the Seller commences work on or appropriates Supplies to the Contract.

2.2       The Seller may alter the specification of any Goods or substitute the Goods with a suitable alternative if this does not materially affect their performance or utility.

2.3       The Seller may vary the design, materials or method of construction of the Goods or substitute the Goods with a suitable alternative as it reasonably considers appropriate in order to improve performance, design or construction; to respond to availability of various materials or components; or to comply with any safety or regulatory requirements.  No such variation or substitution shall materially alter the size or proportions or materially worsen the performance of the Goods.  The Seller shall promptly notify the Buyer of any such variations or substitutions and if reasonably practicable shall consult with it upon any variations or substitutions which are not immaterial.

2.4       If any variation or substitution in the Supplies or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation the Buyer shall pay such additional amount as is fair and reasonable and the Seller shall have reasonable additional time to perform the Contract.

2.5       The Buyer may request Non-Standard Specifications in relation to the Goods.  The Seller shall consider such Non-Standard Specifications and if it considers them feasible and reasonably compatible with the scope of the Contract clause 2.6 shall apply.  Any Non-Standard Specification and any consequential change in the Price must be agreed in writing within four (4) weeks from the date of issue of the AO (or longer period agreed by the Seller) failing which the Standard Specification shall apply.

2.6       If the Buyer requests a Non-Standard Specification which the Seller considers so feasible and compatible the Seller shall respond to the Buyer upon the request including with the implications upon the Price, estimated delivery date and other implications; the parties shall then seek in good faith to agree the Non-Standard Specification and the terms upon which it will be applied.  If the same are agreed the Contract shall be modified accordingly but if they are not agreed within the four (4) week (or longer) period referred to in clause 2.5 the request shall be of no effect and the Standard Specification shall apply.

3. PRICES AND PAYMENT

3.1       Subject to any AO, the Price shall exclude value added tax and any other applicable taxes and duties, packaging, carriage, insurance, documentation and installation charges.  Unless costed for in any AO, the Seller may make reasonable additional charges for complying with any special requirements of the Buyer.  Payment, subject to any AO, shall be made in the invoice currency clear of any banking transaction charges and without deduction, set off or counterclaim. 

3.2       The Price for the Goods shall be paid as follows, unless determined otherwise in the Seller’s relevant quotation or AO: 100% of the Price shall be invoiced by the Seller upon the date of shipment of the Goods, and payment of such invoice shall be due within thirty (30) days of the date of the invoice.  The Seller reserves the right to make an administrative charge when payment is made by other than electronic funds transfer.

3.3       Where any payment is to be made against an irrevocable letter of credit opened prior to the date of shipment of Goods from the Seller’s premises, the terms of such letter of credit must be acceptable to the Seller and confirmed by a prime London bank.  The letter of credit shall be opened within two (2) weeks of the issuance of the AO and the validity period shall be not less than ninety (90) days from the latest shipment date in such letter of credit.

3.4       The Price for Services shall be invoiced by the Seller in advance of the service and payment of such invoice shall be due within thirty (30) days from the date of invoice unless determined otherwise in the Seller’s relevant quotation or any AO and/or Service Plan Information Sheet.  Where the Services comprise a Service Plan, the Price for such Services shall be paid annually in advance and may be increased by the Seller by not less than ninety (90) days’ notice prior to the anniversary of the expiry of the Initial Period or any Extended Period where such increase is greater than 5%.

3.5       The Buyer shall not delay payment for any reason.  Time of payment is of the essence of every Contract.  Without limiting the Seller’s remedies if payment is overdue, the Seller may suspend performance or refuse to perform its obligations in the Contract until the Seller has received the invoiced payment from the Buyer.  If the Buyer delays payment for more than sixty (60) days from the date of the invoice, the Buyer shall pay the Seller interest on the amount overdue at the rate of 8% above the Bank of England base rate from time to time, calculated daily from the date payment fell due until the date of actual payment (or such lesser amount as is the maximum rate permissible by law) and the Buyer shall indemnify the Seller against any legal fees and other costs of collection.

3.6       Any payment which would fall due later than it would have done but for delay caused by the Buyer shall be deemed to fall due when, but for the Buyer's delay, it might reasonably be expected to have fallen due.

4. RISK AND PROPERTY

4.1       Until payment has been made of the whole of the Price and other monies payable by the Buyer under the Contract and of all other monies owing by the Buyer to the Seller at the time the payment for the Goods falls due:

a) property in any Goods shall remain the Seller's; the Buyer shall hold such Goods as the Seller's fiduciary agent and bailee, stored separately from those belonging to any other person and labelled so as to show clearly that they are the property of the Seller and shall ensure that they are properly protected, treated and insured, and shall not dispose of the Goods;

b) the Seller may recover and/or resell the Goods, require their return to the Seller and enter upon the Buyer's or any carrier's premises by its servants or agents for that purpose and the Buyer grants the Seller an irrevocable licence to this effect which shall survive termination of the Contract;

c) the Seller shall have a right of lien over any goods or materials belonging to the Buyer which are in the Seller's possession or control; and

d) the Buyer shall not pledge or charge by way of security for any indebtedness any of the Goods which remain the Seller's property but if it does all monies owing by the Buyer to the Seller shall forthwith become due and payable.

4.2       Risk of damage to or loss of the Goods shall pass to the Buyer at the earlier of the time when the Seller notifies the Buyer that the Goods are available for collection or upon the Seller first despatching the Goods from its premises, unless any AO specifies otherwise.

5. DELIVERY AND RESCHEDULE

5.1       Save as otherwise agreed in writing by the Seller, delivery of the Goods shall be made by the Seller making the Goods available for collection from its premises and and so informing the Buyer or, if some other place for delivery is stated in any AO, by the Seller or its nominated carrier despatching the Goods from its premises to the stated place.  If the Buyer fails to take delivery or to give adequate delivery instructions, the Seller may (without prejudice to its other rights) store or dispose of the Goods, in which case the Buyer shall pay to the Seller upon request the amount of any reasonable storage or disposal charges.  

5.2       The Seller may deliver Goods in instalments and delay in delivery of any instalment will not entitle the Buyer to terminate the Contract, nor permit the set off of any payments in respect of one delivery against any claim in respect of any other delivery.  Where Goods are delivered by instalments the Seller may issue separate invoices.

5.3       The Buyer shall clear the Goods for import into the country of delivery unless any AO states otherwise.

5.4       Whilst the Seller will seek to meet any stated delivery or performance time, it is approximate, shall not be binding upon the Seller and the Seller shall not incur liability in relation to late delivery or performance of Supplies.  If no time for delivery of Goods is agreed, the Buyer shall accept the Goods when ready for delivery.

5.5       Should the Buyer wish to vary a delivery or performance schedule; it shall make a request in writing to the Seller.  Rescheduling restrictions apply and the Seller is not obliged to accept a request for a re-schedule of delivery or performance of Supplies.  Should the Seller agree in writing to amend a delivery or performance schedule, charges may apply.  Such charges shall be applied at the time the re-schedule is agreed.

5.6       If the Buyer elects to return any Goods to the Seller then a minimum 25% re-stocking fee will be charged to the Buyer. All Goods sent from the Buyer to the Seller for re-stocking must be received by the Seller in its original packaging and condition. Return of any goods are at the sole discretion of the Seller.

5.7       Any purchase order issued by the Buyer to the Seller that is terminated for the convenience of the Buyer before delivery of the Goods from the Seller to the Buyer will result in a minimum 25% termination fee. 

6. INSPECTION AND ACCEPTANCE

6.1       The Buyer shall carry out an initial inspection of the packaging of the Goods immediately on receipt, including an inspection of the condition of the boxes and an inspection of any “tip and tell” sensors or shock watches attached to the outside packaging of the Goods.  If any such sensors or shock watches have been triggered, the Buyer shall refrain from unpacking or moving the Goods and shall inform the Seller immediately and provide the Seller with photographic evidence of any damage as soon as possible but no later than within twenty-four (24) hours after the Buyer receives the Goods. 

6.2       Unless the Seller will issue or has issued an acceptance certificate or an installation certificate is to be or has been issued pursuant to clause 14, or unless the Buyer has made a notification to the Seller in accordance with clause 6.1 above, the Buyer shall inspect and test the Goods and within seven (7) days of their delivery, and in respect of Services, within seven (7) days of the Seller tendering their completion, the Buyer shall give prompt written notice to the Seller of any damage or claim.  In the absence of such notice, the Goods shall be deemed to comply with the Contract and the Buyer shall accept them. 

7. WARRANTY

7.1       If within the Applicable Warranty Period any Goods prove defective by reason of faulty design, workmanship or materials or the Seller receives notice from the Buyer that any Services were not performed in accordance with the Service Plan Information Sheet, the Seller will adjust, repair or replace the Goods as it sees fit or re-perform any non-compliant Services free of charge, subject to clause 12.5, provided that:

a) the Buyer gives written notice of the defect or non-performance of the Services (with reasonable relevant information) to the Seller as soon as reasonably practicable and within the Applicable Warranty Period;

b) the Goods and/or Serviced Goods have been used solely for their proper purpose and in accordance with the operating instructions;

c) the defect or failure to perform the Services has not been caused by fire, accident, misuse, neglect, incorrect installation by the Buyer or its customers, agents or servants, unauthorised alteration, repair or maintenance or the use of sub-standard consumables and has not arisen from fair wear and tear;

d) the defect or failure to perform the Services has not arisen from any design, specification, component or material supplied by or on behalf of the Buyer;

e) no part of the Goods and/or Serviced Goods has been replaced with a part not supplied or approved by the Seller;

f) payment in full of all sums due in respect of the Supplies has been made;

g) the Buyer shall be liable for any costs incurred by the Seller in responding to claims caused by operator error or incorrect application or other default of the Buyer or other third party;

h) the Buyer shall accord the Seller sufficient access to the Goods and/or Serviced Goods to enable its staff to inspect and adjust, repair, remove or replace the Goods or re-perform the Services; and

i) the costs of all consumables shall be paid by the Buyer.

7.2       The Seller may repair the Goods in situ or have them returned to its premises; if the latter, the risk in the Goods shall at all times remain the Buyer's and they shall be packaged as the Seller instructs and despatched at the Buyer's expense.  Costs of carriage on the Goods' return to the Buyer shall be borne by the Seller where the defect is covered by this guarantee.

7.3       If the Goods incorporate goods or services are provided by a third party, the obligations of the Seller in respect of such goods or services shall not exceed the warranty obligations of such third party to the Seller nor exceed any time limit upon those obligations.

7.4       The Applicable Warranty Period is six  (6) months from delivery date in respect of repaired Goods or exchanges made in lieu of repairs. Goods covered by the original warranty are warranted to the original expiry date or six (6) months after delivery of the exchange, whichever is the later date.

7.5       Photomultiplier tubes (“PMT”) (specifically those with GaAsP photocathodes) are considered consumable items and are extremely sensitive scientific devices. Exposure to any light, including intended exposure during experiments, will slowly desensitise these detectors. Exposure to higher levels of light may accelerate this process. As a result, all PMTs provided by Scientifica are classed as consumable devices and as such, issues where detector sensitivity is found to be the cause of performance degradation or fault, are not covered by our standard warranty terms. In these cases, a replacement sensor will be offered on a billable basis.

7.6       Where the Buyer accepts receipt of Goods that require installation by a Scientifica Engineer and the Buyer requests a delay to installation, the warranty period shall be considered to have begun on the date of installation, provided that this date is no later than ninety (90) days from the date of receipt of Goods.  In this case the warranty period shall be deemed to have commenced ninety (90) days from receipt of the system/goods, unless otherwise agreed in writing by both the Seller and Buyer.

7.7       This limited warranty is in lieu of any other warranty, whether express or implied, written or oral (including without limitation, any warranty of merchantability, fitness for a particular purpose or non-infringement) with respect to the Goods, the manufacture, sale, supplying or failure or delay in supplying the Goods, Services related thereto or the use, results or disposition of the Goods.  The Seller expressly disclaims all warranties (whether express or implied, written or oral) with respect to the results obtained from the Goods. The Seller does not warrant that the use of the Goods shall be uninterrupted or error- free.

7.8       Extended Warranties - The Seller offers a range of extended warranty packages for sale, which supplement the standard warranty period of twenty-four (24) months for the Seller’s designed and manufactured Goods. Please note that the purchase of an extended warranty period is optional. All extended warranties exclude third party products, not of the Seller’s design or manufacture. When an extended warranty period is purchased, it is deemed to have commenced at the expiry date of the standard warranty period, or a previously extended warranty period and will continue until the additional purchased extended warranty period elapses.

8. PROVISION OF CHARGEABLE SERVICES

8.1       Where the Services comprise the servicing and/or maintenance by the Seller of Serviced Goods the following applies:

a) The Serviced Goods must be fully installed and accepted by the Buyer.

b) The Seller may prior to accepting any order from the Buyer to provide the Services, carry out at the expense of the Buyer an inspection of the Serviced Goods as the Seller reasonably requires.  Such inspection shall be charged at the Seller’s then current list price for such inspection.

c) If the Seller reasonably determines that the Serviced Goods are not in good operating condition prior to start of performance of the Services, the Seller may require the Buyer to effect such adjustments as it determines necessary and, if the Seller agrees to provide such adjustments the Buyer will pay for such work on a time and materials basis.  The Seller reserves the right not to commence performance of the Services until the Services Goods are in good operating condition.

d) Subject to clause 12.5, the Seller may send a replacement part for the Buyer to replace a defective part with or, if the Service Plan so provides, the Seller shall send an Engineer to repair the Serviced Goods in situ.  The Seller may send an Engineer to repair the Serviced Goods in situ (which will be chargeable at the standard rate) or may have them returned to its premises; if the latter, the risk in the Serviced Goods shall at all time remain the Buyer’s and they shall be packaged as the Seller instructs and dispatched at the Seller’s expense.  Costs of carriage on the Serviced Goods’ returned to the Buyer shall be borne by the Seller unless otherwise specified in the AO. The Buyer acknowledges that failure by the Buyer to return any Serviced Goods to the Seller’s premises at the Seller’s request may result in a delay or alteration to the performance of the Services and, to the extent permitted by law, the Seller shall not be liable for any losses, damages, claims, costs or expenses incurred by the Buyer or any third party arising out of or in connection with such delay or alteration to the performance of the Services.

e) Parts of components of Serviced Goods will be replaced at the Seller’s discretion, if no appropriate alternative fix is available any replacement parts used by the Seller shall be new or of equivalent performance to new parts, at the Seller’s discretion. The Seller reserves the right to use reconditioned parts, if necessary. Replacement parts shall be the property of the Buyer and replaced parts shall become the property of the Seller which may invoice the Buyer for their replacement value if such parts are not returned to it within ten (10) days of their replacement.

f) If any appointment with an Engineer is cancelled or rescheduled by the Buyer with less than fourteen (14) days’ notice the Seller will charge for its time and expenses in respect of such appointment.

8.2       The Seller shall provide the Services detailed in the Service Plan Information Sheet or the AO at the location and rates contained therein. In the event that additional Serviced Goods are agreed to be added to the Contract, a new Contract shall be executed between the Seller and the Buyer to identify the new Serviced Goods, Price and payment terms (if any). 

8.3       The Buyer shall grant full access to its premises and equipment to enable the Seller to perform the Services during all normal working hours and upon reasonable notice from the Seller at any other time. 

8.4       The Buyer shall ensure that any premises to which the Seller’s employees or agents have access for provision of Supplies fully comply with health and safety regulations and best practices and the Buyer will not expose such persons to unnecessary risk or danger to personal safety.  The Buyer shall ensure that the Seller’s personnel are made aware of all relevant safety procedures and regulations.

8.5       Without limitation to clause 11, the Buyer shall ensure that its employees and agents comply with all reasonable instructions made by the Seller’s employees and agents in the course of provision of Supplies or to enable the Seller to limit any damage to either party, including without limitation complying with safety procedures.

8.6       The Buyer shall take all precautions to protect its data and shall ensure that a regular back-up arrangement is implemented before and during the provision of the Supplies.  The Buyer shall be responsible for restoring any lost or corrupted data unless such loss is caused by the negligence or wilful default of the Seller in which case its liability shall be limited to the reinstatement where possible of all data proven to have been lost or irremediably corrupted and which would not have been included in such back-up arrangements required to be maintained by the Buyer.

8.7       Save with the Seller’s prior written consent, the Buyer undertakes that it will not, during or for a period of twelve (12) months after the provision of the Supplies has ceased, directly or indirectly solicit any employee of the Seller or seek to cause him to leave the employment of the Seller.

8.8       Without prejudice to clause 8.7, the Buyer shall pay to the Seller a commission fee of 30% of that employee’s then current annual salary including accrued benefits in respect of any employee of the Seller who is employed or engaged by the Buyer or any associate of the Buyer during or within twelve (12) months after the provision of the Supplies ceased.

8.9       The Buyer shall at the Seller’s request provide adequate security and space at its premises for secure and proper storage of any equipment belonging to or used by the Seller or its employees or agents.

8.10     The Buyer shall indemnify the Seller against any liability in relation to claims or awards made against the Seller or its agents or sub-contractors by any person employed or previously employed by the Buyer or any contractor to the Buyer regarding their employment rights and without limitation any applicable legislation concerning transfers of undertakings from time to time in force.

8.11     The Buyer shall reimburse the reasonable expenses of any employees or representatives of the Seller who are required to travel from the Buyer’s premises at its request during the provision of the Supplies.

8.12     The Buyer shall have no right in or lien over any equipment provided to it by the Seller on loan and shall return any such equipment to the Seller immediately upon request.  The Seller reserves the right to enter the premises of the Buyer to identify and remove any such equipment.

8.13     The Buyer shall indemnify the Seller against any liability in relation to:

a) the Buyer’s failure to comply with any of its obligations under this clause 8; 

b) any action of the Seller required to be taken or not to be taken at the request or direction of the Buyer;

c) any information or materials provided to the Seller by the Buyer or any of its employees, associates or representatives other than for their intended use as communicated to the Buyer by the Seller; or

d) the negligence or wilful misconduct of the Buyer.

8.14     The Seller warrants that the Services will be performed with reasonable skill and diligence and the Seller shall use reasonable endeavours to attain any service levels or project specifications contained in any Service Plan Information Sheet or referred to in any AO; such service levels or specifications shall not form part of the Contract and failure to attain any service  level or specifications shall not constitute a breach of contract by the Seller save as specified in such Service Plan Information Sheet or AO.

8.15     Unless otherwise agreed in writing, the Seller shall have no obligation to provide Services in respect of Serviced Goods which are moved to a new location from that specified in the AO and/or Service Plan Information Sheet and may charge additional rates for such Services. 

8.16     Following a request by the Buyer, the Seller may remove and reinstall Serviced Goods for the Buyer from its original location to a new location: such removal and reinstallation if agreed shall, unless otherwise agreed in writing, be on the Seller’s then current standard terms for such services and shall be charged to the Buyer at the Seller’s then current standard rates for the same. 

8.17     If the Seller undertakes the removal and reinstallation of Serviced Goods for the Buyer from its original location to a new location, the Seller may, in its sole discretion, waive the requirement for a pre-service inspection and adjustment as described in clauses 8.1(b) and 8.1(c). 

8.18     If the Serviced Goods are moved and the Seller has agreed to provide Services in respect of such Serviced Goods and the removal and installation of Serviced Goods from their original location to a new location is undertaken by the Buyer or a third party, the Seller may, in its sole discretion. require the performance of a further pre-service inspection and adjustment pursuant to clauses 8.1(b) and 8.1(c). 

8.19     If the Seller reasonably determines that any Serviced Goods cannot be put into good operating condition following their removal and reinstallation from their original location to a new location, the Seller shall have the right to immediately terminate the Contract in whole or in part on written notice to the Buyer. 

9. EXCLUSIONS FROM SERVICES

9.1       Where the Services include service or maintenance of the Buyer’s equipment, an additional fee will be payable to the Seller for any items not specifically set out in the AO or the Service Plan Information Sheet, or in an agreed schedule and unless otherwise expressly stated therein there shall be excluded from such Services or an additional fee shall be payable for:

a) the provision of consumables and accessories (such as storage devices, modems, additional screens, keyboards);

b) the supply and installation of patches, fixes, BIOS upgrades or other software related upgrades or modifications, or of loaners, add-ons or other upgrades to Serviced Goods;

c) repairs necessitated as a result of any cause other than fair wear and tear resulting from proper use of the Serviced Goods or other equipment in accordance with the Seller’s or the manufacturer’s instructions (including, without limitation, fire, accident, misuse, neglect, incorrect installation by the Buyer or its customers, agents or servants, unauthorised alteration, repair or maintenance or the use of sub-standard consumables, failure or fluctuation of electrical power, failure of air conditioning or humidity control, or abnormal physical or electrical stress) or repairs necessitated by equipment not supplied by the Seller or by the Serviced Goods not being in good working order when the Services are commenced;

d) any modification or alteration to the Serviced Goods except as required to rectify a fault diagnosed by the Seller or the manufacturer;

e) repair necessitated by any design, specification, component or material supplied by or on behalf of the Buyer or by the replacement of any part of the Serviced Goods with a part not supplied or approved by the Seller;

f) repair or replacement of any equipment the subject of such services if such equipment is obsolete or beyond economic repair (“BER”), meaning that the cost of repair is not less than 60% of the then current market value of such equipment; and

g) electrical work external to the Serviced Goods.

9.2       The Buyer shall reimburse the Seller against any costs incurred by the Seller responding to claims caused by operator error or incorrect application or other default of the Buyer or other third party.

9.3       In the provision of Services, the Seller cannot guarantee the attendance of any particular individual as an Engineer and reserves the right to replace any Engineer with an appropriate alternative individual at any time.

9.4       Unless otherwise agreed in writing, the Engineer shall not be required to perform any services other than the Services, in particular the Engineer does not carry stock unless specifically ordered in advance. Charges for labour or materials for any service (including without limitation reinstallation and training in the use of the Serviced Goods) other than the Services can be provided at an additional cost. The Buyer may request a quotation from the Seller for such services. 

10. RENTAL EQUIPMENT

10.1       This clause 10 shall apply to any Rental Equipment provided by the Seller as part of the Services. 

10.2       Any Rental Equipment shall at all times remain the property of the Seller, and the Buyer shall have no right, title or interest in or to the Rental Equipment. 

10.3       The risk of loss, theft, damage or destruction of the Rental Equipment shall pass to the Buyer on delivery and shall pass back to the Seller on delivery of such Rental Equipment back to the Seller at the end of the Rental Period, or earlier if requested by the Seller. The Rental Equipment shall remain at the sole risk of the Buyer during the period in which the Rental Equipment is in the possession, custody or control of the Buyer until such time as the Rental Equipment is redelivered to the Seller (the “Rental Period”). 

10.4       During the Rental Period, the Buyer shall: 

a) at its own expense, obtain and maintain insurance of the Rental Equipment to a value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Seller may from time to time nominate in writing;

b) ensure that the Rental Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Seller;

c) not use the Rental Equipment for an unlawful purpose;

d) make no alteration to the Rental Equipment and shall not remove any existing component(s) from the Rental Equipment without the prior written consent of the Seller unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements and renewals made in or to the Rental Equipment shall vest in the Seller immediately upon its installation;

e) permit the Seller or its duly authorised representative to inspect the Rental Equipment at all reasonable times and for such purpose to enter upon any premises at which the Rental Equipment may be located, and shall grant reasonable access and facilities; and

f) not, without the prior written consent of the Seller, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Rental Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it.

10.5       The Seller reserves the right to remove any Rental Equipment at any time and the Buyer grants an irrevocable right of entry to the premises where the Rental Equipment is situated for such purpose.

10.6       The Buyer shall return any such Rental Equipment to the Seller immediately upon request. 

11. EXCLUSION AND LIMITATION OF LIABILITY

11.1       In an effort to keep the Contract price as low as possible and as the Buyer is better able than the Seller to quantify loss which it may suffer from a breach of contract and to insure accordingly, the Buyer agrees to the Seller limiting its liability and therefore agrees that save as expressly agreed in writing or as mandatorily implied by law:

a) the Seller shall have no obligation in respect of the Goods or Serviced Goods except for its undertaking in clause 7 above (“the Warranty”) and as expressly stated in the Contract;

b) if the Seller has repaired or replaced the Goods pursuant to the Warranty, or properly re-performed the Services it shall have no further liability in respect of such defect or fault in the Goods or default in the Services unless a repair or replacement or proper performance is not possible in which case the Seller’s liability shall be limited to refunding any monies paid in respect of such defective Goods or Services;

c) the Buyer acknowledges that the Seller’s obligations and liabilities in respect of the Supplies are exhaustively defined in these Terms and that such express obligations are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the Supplies including, without limitation, as to the condition, quality, performance or fitness for the purpose of the Supplies or any part of them;

d) the Seller shall not be liable for any failure to perform, or delay in performing, any Services which is caused or contributed to by a breach by the Buyer or its obligations under the Contract and the Seller shall be entitled to rely on all information and materials provided by the Buyer without verifying the same; and

e) the Seller shall not be liable for any loss which represents or which is loss of profit, revenue, benefit, anticipated savings or goodwill, loss of use of any asset, loss of data, business interruption, management costs or third party liability or special, consequential or indirect loss.

11.2       The aggregate liability of the Seller (whether in contract, tort, breach of statutory duty or otherwise) for all breaches under or non-performance of its obligations or contemplated by any Contract shall not exceed a sum equal to one and a half times the amount paid for any Supplies the subject of such Contract save that this sub-clause shall not limit or exclude any liability of the Seller which cannot be effectively excluded in law.

11.3       The Buyer shall not rely upon any representation concerning the Supplies unless made by the Seller in writing in the Contract save that nothing in the Contract or these Terms shall exclude liability for fraudulent misrepresentation.

11.4       Without prejudice to the foregoing, the provision of the Services is not a guarantee that any Serviced Goods will operate uninterrupted or without error, nor is it a guarantee against obsolescence.

11.5       Any liability of the Seller under any warranty, indemnity or other obligation stated or confirmed in the AO is subject to all exclusions and limitations in these Conditions.

11.6       If the Seller obtains performance of any of the Services by any of its associates or any sub-contractor, such associate or sub-contractor shall be entitled to the benefit of this clause 11 and to enforce it on its own behalf.

12. REGULATORY COMPLIANCE, LICENCES AND PRE-DELIVERY TESTS

12.1       The Supplies will comply with mandatory United Kingdom (“UK”) regulations applicable to the manufacture and non-consumer sale of the Supplies at the date of delivery but no other warranty or undertaking as to regulatory compliance in the UK or elsewhere is given or to be implied unless specifically given in writing signed by a director of the Seller or stated in any AO.  The Buyer shall comply with applicable laws relating to the Supplies, their use and disposal.  Without limiting the foregoing, where ionising radiation is used in the Goods the Seller will upon request provide reasonable advice and assistance to the Buyer in respect of radiological protection and applicable legal requirements concerning registration and access.

12.2       The Buyer's representatives at the Buyer's cost may attend inspections and tests of the Supplies at the Seller's premises required by the Seller prior to delivery but if such representatives fail to so attend such tests may be carried out in their absence.  If the Seller issues an acceptance certificate the Buyer shall accept the same which shall be conclusive evidence of the Supplies' conformity with the Contract and their acceptance by the Buyer.

12.3       The Buyer shall obtain in good time any applicable licences, permits and approvals in its control relating to import and export and to the installation and/or operation of the Supplies and will indemnify the Seller against all liability in relation to Supplies supplied without them.  The Seller shall not be responsible for any liability in relation to delay in obtaining or failure to obtain such licences, permits or approvals.

12.4       The Buyer shall strictly comply with all applicable export laws, controls and regulations and shall provide the Seller with an End User Undertaking as soon as practically possible and, in any event, no later than seven (7) days of issue of the Buyer’s purchase order. 

12.5       The Buyer acknowledges that export of the Goods, any spare parts and components and the Serviced Goods, and the performance of the Seller’s obligations in the Contract, are contingent upon the export controls of the UK, the US and other applicable jurisdictions.  The Seller shall not be liable to the Buyer in the event that the requisite governmental authorisations, permits, licences, consents cannot be obtained, or they are revoked, delayed, withdrawn, terminated or cancelled for whatever reason.

12.6       The Buyer represents that it is not a Restricted Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to US, UK, EU or UN export controls for anti-terrorism reasons or with which US, UK or EU persons are generally prohibited from engaging in financial transactions; (2) on the US Department of Commerce Denied Person’s List, Entity List, or Unverified List; US Department of the Treasury list of Specially Designated Nationals and Blocked Persons; or US Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-US military organisation. 

12.7       The Buyer shall not export, re-export, divert, transfer or disclose, directly or indirectly, any Goods or Serviced Goods or related technical data, materials or documents or any product thereof to any Restricted Party or to any country (or any national or resident thereof) which the US or UK Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorisation of the Seller and the applicable Government agency.

13. TERMINATION OF CONTRACT

13.1       Where the Services comprise a Service Plan, such Service Plan shall begin on the Commencement Date and thereafter, unless terminated earlier in accordance with this clause, shall continue for the Initial Period.  The Seller may agree to extend the Initial Period for any number of one (1) year periods thereafter (each being an “Extended Period”) for an additional fee.  During any Extended Period, either party may terminate any Service Plan element of a Contract for Serviced Goods by giving sixty (60) days’ notice in writing to the other party, such notice expiring on the expiry of such Extended Period. 

13.2       The Seller may terminate separately all or any of the Contract and every other contract with the Buyer if:

a) the Buyer fails to make payments to the Seller under any contract as they fall due or the Buyer otherwise breaches any such contract and the breach or non-payment is not remedied within seven (7) days of notice from the Seller; or

b) the Buyer is, or is deemed to be, insolvent or suspends payment or performance of its obligations or threatens to do so, or the Seller has reasonable grounds for believing it will fail to discharge its obligations under any contract or steps are taken to propose any composition, scheme or arrangement involving the Buyer and its creditors or obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Buyer or any of its property or enforce any security over the Buyer's property, or repossess any goods in its possession or wind up or dissolve the Buyer, or sequestrate its estate or dissolve it or file a petition in bankruptcy or other relief from creditors; or

c) control of the Buyer passes from the present shareholders, owners or controllers to other persons whom the Seller in its absolute discretion regards as prejudicial to its reasonable interests; or

d) in the reasonable opinion of the Seller the Buyer has ceased or threatened to cease to trade; or

e) where the Buyer is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner; or

f) anything corresponding to any of the above occurs outside England and Wales.

13.3       If the Contract is terminated, the Seller (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:

a) declare immediately payable (and so interest-bearing under clause 3.5)  sums owed by the Buyer, proceed against the Buyer for the same and/or damages, and appropriate any payment by the Buyer as the Seller thinks fit (notwithstanding any purported appropriation by the Buyer);

b) suspend further performance of any Contract and/or any credit granted to the Buyer on any account (and the time for delivery by the Seller shall be extended by the period of such suspension); and/or

c) take possession of and deal with (including the sale of) any materials and other assets of the Buyer held by or on behalf of the Seller and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any Contract including any interest and costs arising thereon.

14. INSTALLATION/COMMISSIONING/PERFORMANCE

14.1       Where the Seller has agreed to install or commission the Goods or perform Services, the Buyer warrants that the site where the Goods are to be used or where performance of the Service is to take place is in all respects suitable for the safe and lawful installation and operation of the Goods or performance of the Services. The Seller reserves the right to refuse to effect or supervise the installation in the event that an installation engineer reports any serious hazards that may endanger the engineer or any third party situated in the vicinity of the proposed installation. The Buyer shall ensure that any packages delivered to the site in advance of the arrival of the installation engineer remain sealed and unopened until the engineer arrives. All the Goods shall be available and situated in the room where the installation will take place upon the arrival of the installation engineer. If the Seller is to effect or supervise the installation, commission the Goods and/or perform Services, the Buyer shall prepare the site in good time and provide all services (including without limitation labour, power, compressed air, water, drainage, liquid cryogens, vacuum pumps, extraction, process gas, bottled gasses, environment, internet ports and ethernet cables as appropriate) for efficient installation, commissioning and/or performance of the Services, failing which the Seller may charge for both lost time of its Engineer and the additional time subsequently required to complete any installation. For the purpose of this clause 14, “commission” and “commissioning” shall mean the (i) hardware start-up; and (ii) process demonstration of the Goods to be performed pursuant to acceptance tests agreed between the Seller and the Buyer prior to acceptance of the Buyer’s order by the Seller. The Buyer acknowledges that the purpose of commissioning is not to demonstrate every possible function capable of being performed by the Goods and that the Buyer will be invited to choose a reasonable but limited number of functions to be demonstrated during commissioning.

14.2       The Buyer shall obtain any certificates or other approvals required in good time before installation and/or commissioning and shall inform the Seller of all relevant safety, building and electrical codes and other requirements relevant to installation and/or commissioning and shall indemnify the Seller against any liability or expense resulting from failure so to do.

14.3       If for any reason (save the Seller’s default) commencement of installation and/or commissioning of the Goods is delayed beyond the date scheduled in the Contract or initially agreed by the Seller (or if none is so scheduled or agreed, then beyond the date which is  thirty (30) days after the Goods were ready for shipment by the Seller), the Buyer shall pay to the Seller at its request the costs which it incurs by reason of the delay plus charges at the Seller’s standard service charge rate for the time which it spends on the additional work required by reason of the delay. If the delay extends by more than ninety (90) days after the Goods were shipped or ready for shipment by the Seller:

a) the Buyer shall be deemed to automatically accept the Goods;

b) the Applicable Warranty Period shall commence; and

c) if the Seller is to effect or supervise the installation and/or is to commission the Goods, such obligation(s) shall expire.  The Buyer may request the Seller to effect or supervise the installation and/or to commission the Goods beyond such date and any such services shall be charged at the Seller’s standard service charge rate.  Any installation and/or commissioning carried out by the Buyer shall be at the risk, cost and expense of the Buyer.

14.4       Subject to automatic deemed acceptance in clause 14.3, upon completion of installation and/or commissioning the Seller shall issue and the Buyer shall accept an installation and/or acceptance certificate which shall be conclusive evidence of the Goods' conformity with the Contract and of their final acceptance by the Buyer.

14.5       Exclusions:

14.5.1                In respect of all Goods; the installation and set-up of third-party goods; floating and levelling of anti-vibration tables, the installation of amplifiers and digitisers. The installation or setting up of any third-party software; training in techniques needed to run experiments; for example, patch-clamping; and running experiments.

14.5.2                In respect of laser-based Goods; software set-up and training if the workstation is not purchased from the Seller; installation of table optics not purchased from the Seller; software integration of third party components not supplied by the Seller; installation, floating and levelling of anti-vibration tables; installation of any third party lasers; training upon third party laser operation.   

15. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

15.1       All inventions, designs, copyrights and processes and all and any other intellectual / industrial property rights whether or not registered or registerable and all goodwill associated thereto relevant to the Supplies and all specifications, designs, programs or other material issued by or on behalf of the Seller shall, as between the Seller and the Buyer remain the absolute property of the Seller.  The Buyer shall not acquire any right or interest in the same except, if the AO or the Service Schedule so requires, the Seller shall grant or procure the grant of a licence to the Buyer to (i) use relevant Software with the Goods or the Serviced Goods or; (ii) use materials created specifically for the Buyer in the course of the Services.

15.2       The Buyer acknowledges that all specifications, design, programs or other material including know-how, plans, drawings and price lists issued by or on behalf of the Seller are confidential and agrees not to use them or any other confidential information of the Seller for any purpose (other than the purpose for which the information was disclosed) nor reproduce them in any form nor disclose them to third parties. The Buyer shall not seek to abstract from the Goods any confidential information regarding their design, construction or otherwise (and without limiting the foregoing shall not decompile any software comprised in the Goods or Serviced Goods) and all rights subsisting in such material are reserved.

15.3       The Buyer shall obtain similar undertakings as those set out in sub-clauses 15.1 and 15.2 from its customers and indemnify the Seller against any liability in relation to any failure to do so.  The Buyer shall upon request sign and/or require its customers to sign the software vendors form of non-exclusive licence to use programs necessary to operate the Goods; all obligations of the Seller under any contract are conditional upon execution of such agreement and compliance with its terms.

15.4       The Seller hereby grants to the Buyer a non-exclusive, non-transferable licence to use the Software solely for the purposes of operating the Goods for their proper designed purpose, but the Buyer shall have no right to access or use the source code of the Software and shall not copy all or part of the Software unless otherwise expressly agreed in writing by the Seller. 

15.5       All intellectual property and other rights of whatever nature in the Software and the documentation for it are and shall remain the property of the Seller or the software vendor.

16. FORCE MAJEURE

The Seller shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its reasonable control (including without limitation, fire, flood or act of god; natural disaster; armed conflict; terrorist attack; civil war; civil commotion or riots; war; sanctions or embargoes; any labour or trade disputes, strikes or industrial actions (whether involving employees of either party or of a third party); epidemic or pandemic; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting or revocation, cancellation or withdrawal of any necessary licence, approval, consent or permit; or any repudiatory event by the Buyer).  In such circumstances it may terminate the Contract whereupon the Buyer shall pay a sum equal to the costs to the Seller of performing the Contract and the Seller's liability shall be limited to repayment of any sums paid in respect of undelivered Goods or unperformed Services less such costs.

17.  USE OF GOODS AND SAFETY

17.1       The Buyer shall:

a) procure that the Goods (including any goods the subject of services) are used only for the purposes and in the manner for which they were designed and supplied; that all persons likely to use or come into contact with the Goods receive appropriate training and copies of applicable literature supplied by the Seller; that all third parties who use or may be affected by or rely upon the Goods are given full and clear warning of any hazards (both patent and latent) associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with.  Any warning notices displayed on the Goods must not be removed or obscured; the Buyer shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning notices and shall take such steps as are reasonable to enforce such agreement;

b) promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them) and shall procure compliance by all relevant persons and shall pay the Seller's reasonable charges for additional or replacement parts (including installation costs) supplied by the Seller for this purpose;

c) maintain and make available to the Seller all records necessary to enable Goods to be traced to their ultimate buyer or user; and

d) indemnify the Seller against any liability in relation to any breach of the Buyer's obligations under this clause 17.1.

18. BUYER’S EQUIPMENT AND OTHER ITEMS

18.1       The Seller shall not be liable for any defect, wastage or other loss whatsoever in, of or arising from equipment, hardware or software or other items (in this clause, “equipment”) supplied or made available to the Seller by the Buyer, which equipment shall be held, worked on and used at the Buyer’s risk.  Quantities of equipment supplied by the Buyer shall allow for normal spoilage and fair wear and tear.

18.2       The Seller shall not be responsible for any loss, damage, cost or expense arising from, or from any defect, mistake or inaccuracy in any equipment specified or supplied by the Buyer.  Any loss, damage, cost or expense arising therefrom shall be for the sole account of the Buyer who shall indemnify the Seller accordingly.

18.3       The Seller’s liability for equipment specified or provided to the Seller by the Buyer or otherwise held or worked on by the Seller on behalf of the Buyer shall be limited to the lesser of the basic raw material cost of the equipment or an independent external valuation of such equipment.

18.4       Prior to its delivery to the Seller or to the Seller being granted access to it the Buyer shall notify the Seller of the nature of any equipment to be held or worked on by the Seller under the Contract, shall provide adequate warnings and instructions where such equipment is or may be hazardous to safety and shall ensure that it complies with any requirements or descriptions of or in the Contract.

18.6    The Buyer shall indemnify the Seller for any liability in relation to such equipment which could not have been prevented by the Seller acting in accordance with the Buyer’s reasonable written instructions and was not caused by the negligence or wilful default of the Seller or its employees.

18.7      The Buyer shall indemnify the Seller against any liability in relation to the contamination, damage or loss (due to contact with any radioactive, chemical or other hazardous materials or by the negligence of the Buyer or its representatives) of any instruments, components, parts or materials brought by the Seller to the Buyer’s premises for the purposes of performance of the Contract.

19. DATA PROTECTION

19.1      The Buyer shall comply with all applicable requirements of the Data Protection Legislation.

19.2      The Buyer shall, in relation to any personal data processed in connection with the Contract:

a)  process that personal data of the Seller only on the written instructions of the Seller, unless required by Data Protection Legislation to otherwise process that personal data;

b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); and

c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential.

20. GENERAL

20.1      The Buyer shall indemnify the Seller against all liability in relation to any specification, design, information or component which the Buyer has supplied or arranged for the supply to the Seller and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.

20.2      No indulgence, forbearance, partial exercise of any right or remedy or previous waiver shall prejudice any rights or remedies.  Remedies shall be cumulative and no choice of remedy shall preclude any other remedy.

20.3      The Buyer shall not assign, mortgage, charge, sub-let or otherwise dispose of the Contract or any rights thereunder in whole or in part.

20.4      After termination (howsoever caused) or cancellation, clauses 3.5, 4, 11, 12, 14, 15, 17, 19 and 20 shall continue in full effect.

20.5      Subject to clause 11.6, a person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which is available apart from that Act.

20.6      All Contracts shall be governed and construed in accordance with English law and the Buyer irrevocably submits to exclusive jurisdiction of the Courts of England without prejudice to which the Seller may apply for any provisional or conservatory measures or interim relief in any court having jurisdiction in the Buyer's country or the country where the Supplies are then located.

Scientifica LLC, United States of America - Terms and Conditions of quotation and sale for goods and services


1. INTERPRETATION

1.1 In these terms (“Terms”):

“AO” means the acknowledgement of order form (if any) issued by the Seller to the Buyer;

“Applicable Warranty Period” means in relation to any Goods manufactured by the Seller, the warranty period applicable to those Goods, subject to Sections 7.3 and 7.4 being either (i) twenty four (24) months commencing on the sooner of the date of acceptance of the Goods in question by the Buyer or ninety (90) calendar days from shipment of the Goods in question or (ii) as otherwise notified in the Seller’s relevant quotation or AO;

“Buyer” means the Buyer of the Goods as stated in any applicable AO;

“Commencement Date” means the date on which the Service Schedule is signed;

“Contract” means the agreement between the Buyer and the Seller for the supply of the Supplies and consisting of the documents referred to in Section 1.4 below;

“End-User Undertaking” means the document in the form provided by the Seller to the Buyer in relation to Goods to be shipped by the Seller outside the U.S.A.

“Engineer” or “Personnel” means an individual engaged or employed by the Seller to perform the Services

“Goods” means the systems or goods or equipment or rig listed in the AO or which the Seller otherwise agrees to supply to the Buyer under the Contract (including any instalments or parts of the goods but excluding any Serviced Goods or parts or components provided to the Buyer in respect of Serviced Goods);

“Initial Period” means the initial period for which the Seller shall provide Services comprising a Service Plan as set out in any applicable quotation and/or AO or Service Plan Information Sheet;

“liability in relation to” means liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and taxes), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with;

“Non-Standard Specification” means any specification relating to the Goods or the formatting or layout of the Goods at the Buyer’s premises requested by the Buyer which deviates from the Standard Specification;

“Price” means subject to these Terms, the price for the Goods as quoted and confirmed in any AO;

“Rental Equipment” means any equipment rented by the Seller to the Buyer as part of the Services;

“Seller” or “Scientifica” means Scientifica LLC of 9 Trenton Lakewood Rd, Millstone, NJ 08510, United States;

“Services” means the services specified in the Service Schedule, AO or which the Seller otherwise agrees to provide to the Buyer under the Contract;

“Service Plan” means a service plan provided by the Seller for Serviced Goods;

“Serviced Goods” means the goods and/or systems (as appropriate) and any configuration thereof listed in the Services Schedule;

“Service Plan Information Sheet” means the document issued by the Seller to the Buyer detailing the services to be provided by the Seller to the Buyer for Serviced Goods under a Service Plan;

“Software” means any software used in the operation of the Goods;

“Standard Specification” means the standard design of the Goods and/or layout of the Goods (prior to any Non-Standard Specification requested by the Buyer) which is current at the time of the issue of an AO;

“Supplies” means the Goods and/or the Services.

1.2       Any Contract provision invalid or unenforceable for any purpose shall be severed for that purpose but otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.

1.3       A payment shall be deemed made when credited to the payee’s bank account and is cleared funds.

1.4       Except as may be otherwise agreed in writing by the Seller, the Contract shall comprise solely these Terms, any AO, any relevant quotation, and any relevant Service Schedule issued by the Seller to the Buyer.  In the event of any inconsistency the following shall prevail in this order (1) the express terms of the AO, (2) quotation, (3) the Service Plan Information Sheet and (4) these Terms.  Variations of the Contract shall be effective only if agreed in writing and will then prevail over these Terms.

1.5       English is the authentic text of the Contract and all notices or other communications under or relating to it shall be in writing in English.  Any translation will be for guidance only.

2. QUOTATIONS, SPECIFICATION, VARIATION AND CANCELLATION

2.1       A quotation is not an offer and may be withdrawn or modified; except as otherwise agreed in writing by the Seller, no contract or commitment shall exist until the Seller sends its AO and/or Service Plan Information Sheet to the Buyer or until the Seller commences work on or appropriates Supplies to the Contract.

2.2       The Seller may alter the specification of any Goods or substitute the Goods with a suitable alternative if such alteration does not materially affect their performance or utility.

2.3       Seller may vary the design, materials or method of construction of the Goods or substitute the Goods with a suitable alternative as it reasonably considers appropriate in order to improve performance, design or construction; to respond to availability of various materials or components; or to comply with any safety or regulatory requirements.  No such variation shall materially alter the size or proportions or materially worsen the performance of the Goods.  The Seller shall promptly notify the Buyer of any such variations or substitutions and if reasonably practicable shall consult with it upon any variations or substitutions which are not immaterial.

2.4       If any variation or substitution in the Supplies or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation, the Buyer shall pay such additional amount as is fair and reasonable and the Seller shall have reasonable additional time to perform the Contract.

2.5       The Buyer may request Non-Standard Specifications in relation to the Goods.  The Seller shall consider such Non-Standard Specifications and if it considers them feasible and reasonably compatible with the scope of the Contract then Section 2.6 shall apply.  Any Non-Standard Specification and any consequential change in the Price must be agreed in writing within four (4) weeks from the date of issue of the applicable AO (or longer period agreed by the Seller) failing which the Standard Specification shall apply.

2.6       If the Buyer requests a Non-Standard Specification which the Seller considers so feasible and compatible, the Seller shall respond to the Buyer upon such request including with the implications upon the Price, delivery date and other implications; the parties shall then seek in good faith to agree the Non-Standard Specification and the terms upon which it will be applied.  If such terms are agreed, the Contract shall be modified accordingly but such terms are not agreed within the four (4) week (or longer) period referred to in Section 2.5 the request shall be of no effect and the Standard Specification shall apply.

3. PRICES AND PAYMENT

3.1       Subject to any AO, the Price shall exclude sales tax and any other applicable taxes and duties, packaging, carriage, insurance, documentation, and installation charges.  Unless costed for in any AO or Service Schedule, the Seller may make reasonable additional charges for complying with any special requirements of the Buyer. Payment, subject to any AO or Service Schedule, shall be made in the invoice currency at the Seller’s office in New Jersey, clear of any banking transaction charges and without deduction, set off or counterclaim.

3.2       The Price for the Goods shall be paid as follows, unless determined otherwise in the Seller’s relevant quotation or AO: 100% of the Price shall be invoiced by the Seller upon the date of receipt of the Goods, and payment of such invoice shall be due within thirty (30) days of the date of the invoice.  The Seller reserves the right to make an administrative charge when payment is made by other than electronic funds transfer.

3.3       Where any payment is to be made against an irrevocable letter of credit opened prior to the date of shipment of Goods from the Seller’s premises, the terms of such letter of credit must be acceptable to the Seller and confirmed by a prime USA bank.  The letter of credit shall be opened within two (2) weeks of the issuance of the AO and the validity period shall be not less than ninety (90) days from the latest shipment date in such letter of credit.

3.4       The Price for Services shall be paid 100% within thirty (30) days from the date of invoice unless determined otherwise in the Seller’s relevant quotation or any AO and/or Service Plan Information Sheet.  Where the Services comprise a Service Plan, the Price for such Services shall be paid annually in advance and may be increased by the Seller by not less than ninety (90) days’ notice prior to the anniversary of the expiry of the  Initial Period or any Extended Period where such increase is greater than 5%.

3.5       The Buyer shall not delay payment for any reason. Time of payment is of the essence of every Contract.  Without limiting the Seller’s remedies if payment is overdue, the Buyer shall indemnify the Seller against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it interest of one and a half percent (1.5%) per month or such lesser amount as is the maximum rate permissible by law and the Seller may cancel the Contract and any other contracts and suspend performance of the Services and suspend deliveries to the Buyer.

3.6       Any payment which would fall due later than it would have done but for delay caused by the Buyer shall be deemed to fall due when, but for the Buyer’s delay, it might reasonably be expected to have fallen due.  The Seller may delay or withhold performance under the Contract until the Buyer has made any payment or opened any letter of credit or established any other payment arrangements which are due to be made, opened or established and it’s time for performance shall be extended accordingly.

4. RISK AND PROPERTY

4.1       Until payment has been made of the whole of the Price and other monies payable by the Buyer under the Contract and of all other monies owing by the Buyer to the Seller at the time the payment for the Goods falls due:

a) title in any Goods shall remain the Seller’s; the Buyer shall hold such Goods as the Seller’s fiduciary agent and bailee, stored separately from those belonging to any other person and labelled so as to show clearly that they are the property of the Seller and properly protected, treated and insured;

b) the Seller may recover and/or resell the Goods, require their return to the Seller and enter upon the Buyer’s or any carrier’s premises by its servants or agents for that purpose and the Buyer grants the Seller an irrevocable right to this effect which shall survive termination of the Contract;

c) upon disposal by the Buyer of the Goods, it shall account to the Seller for the proceeds and shall keep such proceeds separate from any other monies or property and (if tangible) properly stored and insured;   

d) the Seller shall have a right of lien over any goods or materials belonging to the Buyer which are in the Seller’s possession or control; and

e) the Buyer shall not pledge or charge by way of security for any indebtedness any of the Goods which remain the Seller’s property but if it does all monies owing by the Buyer to the Seller shall forthwith become immediately due and payable.

4.2       Risk of damage to or loss of the Goods shall pass to the Buyer at the earlier of the time when the Seller notifies the Buyer that the Goods are available for collection or upon the Seller first dispatching the Goods from its premises unless any AO specifies otherwise.

5. DELIVERY AND RESCHEDULE

5.1       Except as otherwise agreed in writing by the Seller, delivery of the Goods shall be made by the Seller from its premises and so informing the Buyer or, if some other place for delivery is stated in any AO, by the Seller or its nominated carrier dispatching the Goods from its premises to the stated place.  If the Buyer fails to take delivery or to give adequate delivery instructions, the Seller may (without prejudice to its other rights) store or dispose of the Goods, in which case the Buyer shall pay to the Seller upon request the amount of any reasonable storage or disposal charges. While the Seller will seek to meet the stated delivery time, it is approximate, and the Seller shall not incur liability in relation to late delivery.  If no time for delivery is agreed, the Buyer shall accept the Goods when ready for delivery.

5.2       The Seller may deliver Goods in instalments constituting separate contracts and delay in delivery of any instalment will not entitle the Buyer to terminate the Contract, nor permit the set off of any payments in respect of one delivery against any claim in respect of any other delivery.  Where Goods are delivered by instalments, the Seller may issue separate invoices.

5.3       Any delivery times quoted by the Seller for the Supplies are approximate and shall not be binding upon the Seller.

5.4       Should the Buyer wish to vary a delivery schedule; it shall make a request in writing to the Seller.  Rescheduling restrictions apply and the Seller is not obligated to accept a request for rescheduled delivery of Supplies.  If the Seller agrees in writing to amend a delivery schedule, charges may apply.  Such charges shall be applied at the time the re-schedule is agreed.

5.5       If the Buyer elects to return any Goods to the Seller then a minimum 25% re-stocking fee will be charged to the Buyer. All Goods sent from the Buyer to the Seller for re-stocking must be received by the Seller in its original packaging and condition. Return of any goods are at the sole discretion of the Seller.

5.6       Any purchase order issued by the Buyer to the Seller that is terminated for the convenience of the Buyer before delivery of the Goods from the Seller to the Buyer will result in a minimum 25% termination fee.

6. INSPECTION AND ACCEPTANCE

6.1       The Buyer shall carry out an initial inspection of the packaging of the Goods immediately on receipt, including an inspection of the condition of the boxes and an inspection of any “tip and tell” sensors or shock watches attached to the outside packaging of the Goods.  If any such sensors or shock watches have been triggered, the Buyer shall refrain from unpacking or moving the Goods and shall inform the Seller immediately and provide the Seller with photographic evidence of any damage as soon as possible but no later than within twenty-four (24) hours after the Buyer receives the Goods.

6.2       Unless the Seller will issue or has issued an acceptance certificate or an installation certificate is to be or has been issued pursuant to Section 14, or unless the Buyer has made a notification to the Seller in accordance with Section 6.1 above, the Buyer shall inspect and test the Goods and within seven (7) days of their delivery, and in respect of Services, within seven (7) days of the Seller tendering their completion, the Buyer shall give prompt written notice to the Seller of any damage or claim.  In the absence of such notice, the Goods shall be deemed to comply with the Contract and the Buyer shall accept them.

7. LIMITED WARRANTY

7.1       If within the Applicable Warranty Period any Goods prove defective by reason of faulty design, workmanship or materials or the Seller receives notice from the Buyer that any Services were not performed in accordance with the Service Plan Information Sheet, the Seller will adjust, repair or replace the Goods as it sees fit or re-perform any non-compliant Services free of charge, subject to Section 12.5, provided that:

a) the Buyer gives written notice of the defect or non-performance of the Services (with reasonable relevant information) to the Seller as soon as reasonably practicable and within the Applicable Warranty Period;

b) the Goods and/or Serviced Goods have been used solely for their proper purpose and in accordance with the operating instructions;

c) the defect or failure to perform the Services has not been caused by fire, accident, misuse, neglect, incorrect installation by the Buyer or its customers, agents or servants, unauthorized alteration, repair or maintenance or the use of sub-standard consumables and has not arisen from fair wear and tear;

d) the defect or failure to perform the Services has not arisen from any design, specification, component, or material supplied by or on behalf of the Buyer;

e) no part of the Goods and/or Serviced Goods has been replaced with a part not supplied or approved by the Seller;

f) payment in full of all sums due in respect of the Supplies has been made;

g) the Buyer shall be liable for any costs incurred by the Seller in responding to claims caused by operator error or incorrect application or other default of the Buyer or other third party;

h) the Buyer shall accord the Seller sufficient access to the Goods and/or Serviced Goods to enable its staff to inspect and adjust, repair, remove or replace the Goods or re-perform the Services; and

i) the costs of all consumables shall be paid by the Buyer.

7.2       The Seller may repair the Goods in situ or have them returned to its premises; if the latter, the risk in the Goods shall at all times remain the Buyer's and they shall be packaged as the Seller instructs and dispatched at the Buyer's expense.  Costs of carriage on the Goods' return to the Buyer shall be borne by the Seller where the defect is covered by this guarantee.

7.3       If the Goods incorporate goods or services that are provided by a third party, the obligations of the Seller in respect of such goods or services shall not exceed the warranty obligations of such third party to the Seller nor exceed any time limit upon those obligations.

7.4       The Applicable Warranty Period is six (6) months from delivery date in respect of repaired Goods or exchanges made in lieu of repairs. Goods covered by the original warranty are warranted to the original expiry date or six (6) months after delivery of the exchange, whichever is the later date.

7.5       Photomultiplier tubes (“PMT”) specifically those with GaAsP photocathodes, are considered consumable items and are extremely sensitive scientific devices. Exposure to any light, including intended exposure during experiments, will slowly desensitize these detectors. Exposure to higher levels of light may accelerate this process. As a result, all PMTs provided by Scientifica are classed as consumable devices and as such, issues where detector sensitivity is found to be the cause of performance degradation or fault, are not covered by our standard warranty terms. In these cases, a replacement sensor will be offered on a billable basis.

7.6       Where the Buyer accepts receipt of Goods that require installation by a Scientifica Engineer and the Buyer requests a delay to installation, the warranty period shall be considered to have begun on the date of installation, provided that this date is no later than ninety (90) days from the date of receipt of Goods.  In this case the warranty period shall be deemed to have commenced ninety (90) days from receipt of the system/goods, unless otherwise agreed in writing by both the Seller and Buyer.

7.7       THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT) WITH RESPECT TO THE GOODS OR SERVICES, THE MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING OF THE GOODS, SERVICES RELATED THERETO OR THE USE, RESULTS OR DISPOSITION OF THE GOODS.  THE SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL) WITH RESPECT TO THE RESULTS OBTAINED FROM THE GOODS.  THE SELLER DOES NOT WARRANT THAT THE USE OF THE GOODS SHALL BE UNINTERRUPTED OR ERROR-FREE.

7.8       THE SELLER OFFERS A RANGE OF EXTENDED WARRANTY PACKAGES FOR SALE, WHICH SUPPLEMENT THE STANDARD WARRANTY PERIOD OF TWENTY-FOUR (24) MONTHS FOR THE SELLER’S DESIGNED AND MANUFACTURED GOODS. PLEASE NOTE THAT THE PURCHASE OF AN EXTENDED WARRANTY PERIOD IS OPTIONAL. ALL EXTENDED WARRANTIES EXCLUDE THIRD PARTY PRODUCTS, NOT OF THE SELLER’S DESIGN OR MANUFACTURE. WHEN AN EXTENDED WARRANTY PERIOD IS PURCHASED, IT IS DEEMED TO HAVE COMMENCED AT THE EXPIRY DATE OF THE STANDARD WARRANTY PERIOD, OR A PREVIOUSLY EXTENDED WARRANTY PERIOD AND WILL CONTINUE UNTIL THE ADDITIONAL PURCHASED EXTENDED WARRANTY PERIOD ELAPSES.

8. PROVISION OF CHARGEABLE SERVICES

8.1       Where the Services comprise the servicing and/or maintenance by the Seller of Serviced Goods the following applies:

a) The Serviced Goods must be fully installed and accepted by the Buyer.

b) The Seller may prior to accepting any order from the Buyer to provide the Services, carry out at the expense of the Buyer an inspection of the Serviced Goods as the Seller reasonably requires.  Such inspection shall be charged at the Seller’s then current list price for such inspection.

c) If the Seller reasonably determines that the Serviced Goods are not in good operating condition prior to start of performance of the Services, the Seller may require the Buyer to effect such adjustments as it determines necessary and, if the Seller agrees to provide such adjustments the Buyer will pay for such work on a time and materials basis.  The Seller reserves the right not to commence performance of the Services until the Serviced Goods are in good operating condition.

d) Subject to Section 12.5, the Seller may send a replacement part for the Buyer to replace a defective part with or, if the Service Plan so provides, the Seller shall send an Engineer to repair the Serviced Goods in situ.

e) The Seller may send an Engineer to repair the Serviced Goods in situ (which will be chargeable at the standard rate) or may have them returned to its premises; if the latter, the risk in the Serviced Goods shall at all time remain the Buyer’s and they shall be packaged as the Seller instructs and dispatched at the Seller’s expense.  Costs of carriage on the Serviced Goods’ return to the Buyer shall be borne by the Seller unless otherwise specified in the AO. The Buyer acknowledges that failure by the Buyer to return any Serviced Goods to the Seller’s premises at the Seller’s request may result in a delay or alteration to the performance of the Services and, to the extent permitted by law, the Seller shall not be liable for any losses, damages, claims, costs or expenses incurred by the Buyer or any third party arising out of or in connection with such delay or alteration to the performance of the Services.

f) Parts of components of Serviced Goods will be replaced at the Seller’s discretion, if no appropriate alternative fix is available any replacement parts used by the Seller shall be new or of equivalent performance to new parts, at the Seller’s discretion. The Seller reserves the right to use reconditioned parts, if necessary. Replacement parts shall be the property of the Buyer and replaced parts shall become the property of the Seller which may invoice the Buyer for their replacement value if such parts are not returned to it within ten (10) days of their replacement.

g) If any appointment with an Engineer is cancelled or rescheduled by the Buyer with less than fourteen (14) days’ notice the Seller will charge for its time and expenses in respect of such appointment.

8.2       The Seller shall provide the Services detailed in the Service Plan Information Sheet or the AO at the location and rates contained therein. In the event that additional Serviced Goods are agreed to be added to the Contract, a new Contract shall be executed between the Seller and the Buyer to identify the new Serviced Goods, Price and payment terms (if any).

8.3       The Buyer shall grant full access to its premises and equipment to enable the Seller to perform the Services during all normal working hours and upon reasonable notice from the Seller at any other time.

8.4       The Buyer shall ensure that any premises to which the Seller’s employees or agents have access for provision of Supplies fully comply with health and safety regulations and best practices and the Buyer will not expose such persons to unnecessary risk or danger to personal safety.  The Buyer shall ensure that the Seller’s personnel are made aware of all relevant safety procedures and regulations.

8.5       Without limitation to Section 11, the Buyer shall ensure that its employees and agents comply with all reasonable instructions made by the Seller’s employees and agents in the course of provision of Supplies or to enable the Seller to limit any damage to either party, including without limitation complying with safety procedures.

8.6       The Buyer shall take all precautions to protect its data and shall ensure that a regular back-up arrangement is implemented before and during the provision of the Supplies.  The Buyer shall be responsible for restoring any lost or corrupted data unless such loss is caused by the negligence or wilful default of the Seller in which case its liability shall be limited to the reinstatement where possible of all data proven to have been lost or irremediably corrupted and which would not have been included in such back-up arrangements required to be maintained by the Buyer.

8.7       Save with the Seller’s prior written consent, the Buyer undertakes that it will not, during or for a period of twelve (12) months after the provision of the Supplies has ceased, directly or indirectly solicit any employee of the Seller, or seek to cause him to leave the employment of the Seller.

8.8       Without prejudice to Section 8.7, the Buyer shall pay to the Seller a commission fee of 30% of that employee’s then current annual salary including accrued benefits in respect of any employee of the Seller who is employed or engaged by the Buyer or any associate of the Buyer during or within twelve (12) months after the provision of the Supplies ceased.

8.9       The Buyer shall at the Seller’s request provide adequate security and space at its premises for secure and proper storage of any equipment belonging to or used by the Seller or its employees or agents.

8.10     The Buyer shall indemnify the Seller against any liability in relation to claims or awards made against the Seller or its agents or sub-contractors by any person employed or previously employed by the Buyer or any contractor to the Buyer regarding their employment rights and without limitation any applicable legislation concerning transfers of undertakings from time to time in force.

8.11     The Buyer shall reimburse the reasonable expenses of any employees or representatives of the Seller who are required to travel from the Buyer’s premises at its request during the provision of the Supplies.

8.12     The Buyer shall have no right in or lien over any equipment provided to it by the Seller on loan and shall return any such equipment to the Seller immediately upon request.  The Seller reserves the right to enter the premises of the Buyer to identify and remove any such equipment.

8.13     The Buyer shall indemnify the Seller against any liability in relation to:

a) the Buyer’s failure to comply with any of its obligations under this Section 8;

b) any action of the Seller required to be taken or not to be taken at the request or direction of the Buyer;

c) any information or materials provided to the Seller by the Buyer or any of its employees, associates, or representatives other than for their intended use as communicated to the Buyer by the Seller; or

d) the negligence or wilful misconduct of the Buyer.

8.14     The Seller warrants that the Services will be performed with reasonable skill and diligence and the Seller shall use reasonable endeavours to attain any service levels or project specifications contained in any Service Plan Information Sheet or referred to in any AO; such service levels or specifications shall not form part of the Contract and failure to attain any service  level or specifications shall not constitute a breach of contract by the Seller save as specified in such Service Plan Information Sheet or AO.

8.15     Unless otherwise agreed in writing, the Seller shall have no obligation to provide Services in respect of Serviced Goods which are moved to a new location from that specified in the AO and/or Service Plan Information Sheet and may charge additional rates for such Services.

8.16     Following a request by the Buyer, the Seller may remove and reinstall Serviced Goods for the Buyer from its original location to a new location: such removal and reinstallation if agreed shall, unless otherwise agreed in writing, be on the Seller’s then current standard terms for such services and shall be charged to the Buyer at the Seller’s then current standard rates for the same.

8.17     If the Seller undertakes the removal and reinstallation of Serviced Goods for the Buyer from its original location to a new location, the Seller may, in its sole discretion, waive the requirement for a pre-service inspection and adjustment as described in Sections 8.1(b) and 8.1(c).

8.18     If the Serviced Goods are moved and the Seller has agreed to provide Services in respect of such Serviced Goods and the removal and installation of Serviced Goods from their original location to a new location is undertaken by the Buyer or a third party, the Seller may, in its sole discretion. require the performance of a further pre-service inspection and adjustment pursuant to Sections 8.1(b) and 8.1(c).

8.19     If the Seller reasonably determines that any Serviced Goods cannot be put into good operating condition following their removal and reinstallation from their original location to a new location, the Seller shall have the right to immediately terminate the Contract in whole or in part on written notice to the Buyer.

9. EXCLUSIONS FROM SERVICES

9.1       Where the Services include service or maintenance of the Buyer’s equipment, an additional fee will be payable to the Seller for any items not specifically set out in the AO or the Service Plan Information Sheet, or in an agreed schedule and unless otherwise expressly stated therein there shall be excluded from such Services or an additional fee shall be payable for:

a) the provision of consumables and accessories (such as storage devices, modems, additional screens, keyboards);

b) the supply and installation of patches, fixes, BIOS upgrades or other software related upgrades or modifications, or of loaners, add-ons, or other upgrades to Serviced Goods;

c) repairs necessitated as a result of any cause other than fair wear and tear resulting from proper use of the Serviced Goods or other equipment in accordance with the Seller’s or the manufacturer’s instructions (including, without limitation, fire, accident, misuse, neglect, incorrect installation by the Buyer or its customers, agents or servants, unauthorized alteration, repair or maintenance or the use of sub-standard consumables, failure or fluctuation of electrical power, failure of air conditioning or humidity control, or abnormal physical or electrical stress) or repairs necessitated by equipment not supplied by the Seller or by the Serviced Goods not being in good working order when the Services are commenced;

d) any modification or alteration to the Serviced Goods except as required to rectify a fault diagnosed by the Seller or the manufacturer;   

e) repair necessitated by any design, specification, component, or material supplied by or on behalf of the Buyer or by the replacement of any part of the Serviced Goods with a part not supplied or approved by the Seller;

f) repair or replacement of any equipment the subject of such services if such equipment is obsolete or beyond economic repair (“BER”), meaning that the cost of repair is not less than 60% of the then current market value of such equipment; and

g) electrical work external to the Serviced Goods.

9.2       The Buyer shall reimburse the Seller against any costs incurred by the Seller responding to claims caused by operator error or incorrect application or other default of the Buyer or other third party.

9.3       In the provision of Services, the Seller cannot guarantee the attendance of any particular individual as an Engineer and reserves the right to replace any Engineer with an appropriate alternative individual at any time.

9.4       Unless otherwise agreed in writing, the Engineer shall not be required to perform any services other than the Services, in particular the Engineer does not carry stock unless specifically ordered in advance. Charges for labour or materials for any service (including without limitation reinstallation and training in the use of the Serviced Goods) other than the Services can be provided at an additional cost. The Buyer may request a quotation from the Seller for such services.

10. RENTAL EQUIPMENT

10.1       This Section 10 shall apply to any Rental Equipment provided by the Seller as part of the Services.

10.2       Any Rental Equipment shall at all times remain the property of the Seller, and the Buyer shall have no right, title, or interest in or to the Rental Equipment.

10.3       The risk of loss, theft, damage or destruction of the Rental Equipment shall pass to the Buyer on delivery and shall pass back to the Seller on delivery of such Rental Equipment back to the Seller at the end of the Rental Period, or earlier if requested by the Seller. The Rental Equipment shall remain at the sole risk of the Buyer during the period in which the Rental Equipment is in the possession, custody or control of the Buyer until such time as the Rental Equipment is redelivered to the Seller (the “Rental Period”).

10.4       During the Rental Period, the Buyer shall:

a) at its own expense, obtain and maintain insurance of the Rental Equipment to a value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Seller may from time to time nominate in writing;

b) ensure that the Rental Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Seller;

c) not use the Rental Equipment for an unlawful purpose;

d) make no alteration to the Rental Equipment and shall not remove any existing component(s) from the Rental Equipment without the prior written consent of the Seller unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements and renewals made in or to the Rental Equipment shall vest in the Seller immediately upon its installation;

e) permit the Seller or its duly authorised representative to inspect the Rental Equipment at all reasonable times and for such purpose to enter upon any premises at which the Rental Equipment may be located, and shall grant reasonable access and facilities; and

f) not, without the prior written consent of the Seller, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Rental Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it.

10.5       The Seller reserves the right to remove any Rental Equipment at any time and Customer grants an irrevocable right of entry to the premises where the Rental Equipment is situated for such purpose.

10.6       The Buyer shall return any such Rental Equipment to the Seller immediately upon request.

11. EXCLUSION AND LIMITATION OF LIABILITY

11.1       IN AN EFFORT TO KEEP THE CONTRACT PRICE AS LOW AS POSSIBLE AND AS THE BUYER IS BETTER ABLE THAN THE SELLER TO QUANTIFY LOSS WHICH IT MAY SUFFER FROM A BREACH OF CONTRACT AND TO INSURE ACCORDINGLY, THE BUYER AGREES TO THE SELLER LIMITING ITS LIABILITY AND THEREFORE AGREES THAT EXCEPT AS EXPRESSLY AGREED IN WRITING OR AS MANDATORILY IMPLIED BY LAW:

A) the Seller shall have no obligation in respect of the Goods except for its undertaking in Section 7 above (the ”Warranty”) and as expressly stated in the Contract;

B) if the Seller has repaired or replaced the Goods pursuant to the Warranty, or properly re-performed the Services it shall have no further liability in respect of such defect or fault in the Goods or default in the Services unless a repair or replacement or proper performance is not possible in which case the Seller’s liability shall be limited to refunding any monies paid in respect of such defective Goods or Services;

C) the Buyer acknowledges that the Seller’s obligations and liabilities in respect of the Supplies are exhaustively defined in these Terms and that such express obligations are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the Supplies including, without limitation, as to the condition, quality, performance or fitness for the purpose of the Supplies or any part of them;

D) the Seller shall not be liable for any failure to perform, or delay in performing, any Services which is caused or contributed to by a breach by the Buyer or its obligations under the Contract and the Seller shall be entitled to rely on all information and materials provided by the Buyer without verifying the same; and

E) the Seller shall not be liable for any loss which represents or which is loss of profit, revenue, benefit, anticipated savings or goodwill, loss of use of any asset, loss of data, business interruption, management costs or third party liability or any consequential, indirect, special, exemplary or punitive damages.

11.2       THE AGGREGATE LIABILITY OF THE SELLER (WHETHER IN CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE) FOR ALL BREACHES UNDER OR NON-PERFORMANCE OF ITS OBLIGATIONS OR CONTEMPLATED BY ANY CONTRACT SHALL NOT EXCEED A SUM EQUAL TO ONE AND A HALF TIMES THE AMOUNT PAID FOR ANY SUPPLIES THE SUBJECT OF SUCH CONTRACT EXCEPT THAT THIS SHALL NOT LIMIT OR EXCLUDE ANY LIABILITY OF THE SELLER WHICH CANNOT BE EFFECTIVELY EXCLUDED IN LAW.

11.3       The Buyer shall not rely upon any representation concerning the Supplies unless made by the Seller in writing in the Contract except that nothing in the Contract or these Terms shall exclude liability for fraudulent misrepresentation.

11.4       Except to the extent of any warranty stated or expressly confirmed in the AO (and so far, as permitted by law), the Seller shall have no liability in respect of any failure by the Goods to recognize date changes and the Buyer shall satisfy itself in all such respects.

11.5       Without prejudice to the foregoing, the provision of the Services is not a warranty that any Serviced Goods will operate uninterrupted or without error, nor is it a warranty against obsolescence.

11.6       Any liability of the Seller under any warranty, indemnity or other obligation stated or confirmed in the AO is subject to all exclusions and limitations in these Conditions.

12. EXPORT

12.1       The Buyer represents that it is not a Restricted Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; (2) on the U.S. Department of Commerce Denied Person’s List, Entity List, or Unverified List; U.S. Department of the Treasury list of Specially Designated Nationals and Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-U.S. military organization. 

12.2       The Buyer shall strictly comply with all applicable export laws, controls, and regulations.  The Buyer shall not export, re-export, divert, transfer or disclose, directly or indirectly, any Goods or related technical data, materials or documents or any product thereof to any Restricted Party or to any country (or any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of the Seller and the applicable U.S. Government agency.

12.3       The Supplies will comply with mandatory United States of America (“USA”) regulations applicable to the manufacture and non-consumer sale of the Supplies at the date of delivery but no other warranty or undertaking as to regulatory compliance in the USA or elsewhere is given or to be implied unless specifically given in writing signed by a director of the Seller or stated in any AO.  The Buyer shall comply with applicable laws relating to the Supplies, their use and disposal.  Without limiting the foregoing, where ionising radiation is used in the Goods the Seller will upon request provide reasonable advice and assistance to the Buyer in respect of radiological protection and applicable legal requirements concerning registration and access.

12.4       The Buyer's representatives at the Buyer's cost may attend inspections and tests of the Supplies at the Seller's premises required by the Seller prior to delivery but if such representatives fail to so attend such tests may be carried out in their absence.  If the Seller issues an acceptance certificate the Buyer shall accept the same which shall be conclusive evidence of the Supplies' conformity with the Contract and their acceptance by the Buyer.

12.5       The Buyer shall obtain in good time any applicable licences, permits and approvals in its control relating to import and export and to the installation and/or operation of the Supplies and will indemnify the Seller against all liability in relation to Supplies supplied without them.  The Seller shall not be responsible for any liability in relation to delay in obtaining or failure to obtain such licences, permits or approvals.

12.6       The Buyer shall strictly comply with all applicable export laws, controls and regulations and shall provide the Seller with an End User Undertaking as soon as practically possible and, in any event, no later than seven (7) days of issue of the Buyer’s purchase order.

12.7       The Buyer acknowledges that export of the Goods, any spare parts and components and the Serviced Goods, and the performance of the Seller’s obligations in the Contract, are contingent upon the export controls of the USA, the UK, EU and other applicable jurisdictions.  The Seller shall not be liable to the Buyer in the event that the requisite governmental authorisations, permits, licences, consents cannot be obtained, or they are revoked, delayed, withdrawn, terminated, or cancelled for whatever reason.

13. TERMINATION OF CONTRACT

13.1       Where the Services comprise a Service Plan, such Service Plan shall begin on the Commencement Date and thereafter, unless terminated earlier in accordance with this Section, shall continue for the Initial Period.  The Seller may agree to extend the Initial Period for any number of one (1) year periods thereafter (each being an “Extended Period”) for an additional fee.  During any Extended Period, either party may terminate any Service Plan element of a Contract for Serviced Goods by giving sixty (60) days’ notice in writing to the other party, such notice expiring on the expiry of such Extended Period.

13.2       The Seller may terminate separately all or any of the Contract and every other contract with the Buyer if:

a) the Buyer fails to make payments to the Seller under any contract as they fall due or the Buyer otherwise breaches any such contract and the breach or non-payment is not remedied within seven days of notice from the Seller; or

b) the Buyer undergoes dissolution, termination of existence, liquidation, insolvency or business failure, or a custodian or receiver is appointed for the Buyer or any part of the property of the Buyer if such appointment is not terminated or dismissed within thirty (30) days;  or

c) the Buyer institutes any proceeding under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally or the making by either party of a composition or any assignment or trust mortgage for the benefit of creditors; or

d) a proceeding is instituted against the Buyer under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally, which proceeding is not dismissed within thirty (30) days of filing; or

e) control of the Buyer passes from the present shareholders, owners, or controllers to other persons whom the Seller in its absolute discretion regards as prejudicial to its reasonable interests; or

f) in the reasonable opinion of the Seller the Buyer has ceased or threatened to cease to operate in the normal course of its business; or

g) where the Buyer is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner.

13.3       If the Contract is terminated, the Seller (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:

a) declare immediately payable (and so interest-bearing under Section 3.5) any sums owed by the Buyer, proceed against the Buyer for the same and/or damages, and appropriate any payment by the Buyer as the Seller thinks fit (notwithstanding any purported appropriation by the Buyer);

b) suspend further performance of any Contract and/or any credit granted to the Buyer on any account (and the time for delivery by the Seller shall be extended by the period of such suspension);

c) take possession of and deal with (including the sale of) any materials and other assets of the Buyer held by or on behalf of the Seller and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any Contract including any interest and costs arising thereon.

14. INSTALLATION/COMMISSIONING/PERFORMANCE

14.1       Where the Seller has agreed to install or commission the Goods or perform Services, the Buyer warrants that the site where the Goods are to be used or where performance of the Service is to take place is in all respects suitable for the safe and lawful installation and operation of the Goods or performance of the Services. The Seller reserves the right to refuse to effect or supervise the installation in the event that an installation engineer reports any serious hazards that may endanger the engineer, or any third party situated in the vicinity of the proposed installation. The Buyer shall ensure that any packages delivered to the site in advance of the arrival of the installation engineer remain sealed and unopened until the engineer arrives. All the Goods shall be available and situated in the room where the installation will take place upon the arrival of the installation engineer. If the Seller is to effect or supervise the installation, commission the Goods and/or perform Services, the Buyer shall prepare the site in good time and provide all services (including without limitation labour, power, compressed air, water, drainage, liquid cryogens, vacuum pumps, extraction, process gas, bottled gasses, environment, internet ports and ethernet cables as appropriate) for efficient installation, commissioning and/or performance of the Services, failing which the Seller may charge for both lost time of its engineer and the additional time subsequently required to complete any installation. For the purpose of this Section 14, “commission” and “commissioning” shall mean the (i) hardware start-up; and (ii) process demonstration of the Goods to be performed pursuant to acceptance tests agreed between the Seller and the Buyer prior to acceptance of the Buyer’s order by the Seller. The Buyer acknowledges that the purpose of commissioning is not to demonstrate every possible function capable of being performed by the Goods and that the Buyer will be invited to choose a reasonable but limited number of functions to be demonstrated during commissioning.

14.2       The Buyer shall obtain any certificates or other approvals required in good time before installation and/or commissioning and shall inform the Seller of all relevant safety, building and electrical codes and other requirements relevant to installation and/or commissioning and shall indemnify the Seller against any liability or expense resulting from failure so to do.

14.3       If for any reason (save the Seller’s default) commencement of installation and/or commissioning of the Goods is delayed beyond the date scheduled in the Contract or initially agreed by the Seller (or if none is so scheduled or agreed, then beyond the date which is thirty (30) days after the Goods were ready for shipment by the Seller), the Buyer shall pay to the Seller at its request the costs which it incurs by reason of the delay plus charges at the Seller’s standard service charge rate for the time which it spends on the additional work required by reason of the delay. If the delay extends by more than ninety (90) days after the Goods were shipped or ready for shipment by the Seller:

a) the Buyer shall be deemed to automatically accept the Goods;

b) the Applicable Warranty Period shall commence; and

c) if the Seller is to effect or supervise the installation and/or is to commission the Goods, such obligation(s) shall expire. The Buyer may request the Seller to effect or supervise the installation and/or to commission the Goods beyond such date and any such services shall be charged at the Seller’s standard service charge rate.  Any installation and/or commissioning carried out by the Buyer shall be at the risk, cost, and expense of the Buyer.

15. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

15.1       All inventions, designs, copyrights and processes and all and any other intellectual / industrial property rights whether or not registered or register-able and all goodwill associated thereto relevant to the Supplies and all specifications, designs, programs or other material issued by or on behalf of the Seller shall, as between the Seller and the Buyer remain the absolute property of the Seller.  The Buyer shall not acquire any right or interest in the same except, if the AO or the Service Schedule so requires, the Seller shall grant or procure the grant of a licence to the Buyer to (i) use relevant Software with the Goods or Serviced Goods or; (ii) use materials created specifically for the Buyer in the course of the Services.

15.2       The Buyer acknowledges that all specifications, design, programs or other material including know-how, plans, drawings and price lists issued by or on behalf of the Seller are confidential and agrees not to use them or any other confidential information of the Seller for any purpose (other than the purpose for which the information was disclosed) nor reproduce them in any form nor disclose them to third parties. The Buyer shall not seek to abstract from the Goods any confidential information regarding their design, construction or otherwise (and without limiting the foregoing shall not decompile any software comprised in the Goods or Serviced Goods) and all rights subsisting in such material are reserved.

15.3       The Buyer shall obtain similar undertakings as those set out in Sub-Sections 15.1 and 15.2 from its customers and indemnify the Seller against any liability in relation to any failure to do so.  The Buyer shall upon request sign and/or require its customers to sign the software vendors form of non-exclusive licence to use programs necessary to operate the Goods; all obligations of the Seller under any contract are conditional upon execution of such agreement and compliance with its terms.

15.4       The Seller hereby grants to the Buyer a non-exclusive, non-transferable licence to use the Software solely for the purposes of operating the Goods for their proper designed purpose, but the Buyer shall have no right to access or use the source code of the Software and shall not copy all or part of the Software unless otherwise expressly agreed in writing by the Seller.

15.5       All intellectual property and other rights of whatever nature in the Software and the documentation for it are and shall remain the property of the Seller or the software vendor.

16. FORCE MAJEURE

The Seller shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its reasonable control (including without limitation, fire, flood or act of god; natural disaster; armed conflict; terrorist attack; civil war; civil commotion or riots; war; sanctions or embargoes; any labour or trade disputes, strikes or industrial actions (whether involving employees of either party or of a third party); epidemic or pandemic; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting or revocation, cancellation or withdrawal of any necessary licence, approval, consent or permit; or any repudiatory event by the Buyer).  In such circumstances it may terminate the Contract whereupon the Buyer shall pay a sum equal to the costs to the Seller of performing the Contract and the Seller's liability shall be limited to repayment of any sums paid in respect of undelivered Goods or unperformed Services less such costs.

17. USE OF GOODS AND SAFETY

17.1       The Buyer shall:

a) procure that the Goods (including any goods the subject of services) are used only for the purposes and in the manner for which they were designed and supplied; that all persons likely to use or come into contact with the Goods receive appropriate training and copies of applicable literature supplied by the Seller; that all third parties who use or may be affected by or rely upon the Goods are given full and clear warning of any hazards (both patent and latent) associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with.  Any warning notices displayed on the Goods must not be removed or obscured; the Buyer shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning notices and shall take such steps as are reasonable to enforce such agreement;

b) promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them) and shall procure compliance by all relevant persons and shall pay the Seller’s reasonable charges for additional or replacement parts (including installation costs) supplied by the Seller for this purpose;

c) maintain and make available to the Seller all records necessary to enable Goods to be traced to their ultimate buyer or user;

d) indemnify the Seller against any liability in relation to any breach of the Buyer’s obligations under this Section 17.1.


18. BUYERS EQUIPMENT AND OTHER ITEMS

18.1       The Seller shall not be liable for any defect, wastage or other loss whatsoever in, of or arising from equipment, hardware or software or other items (in this Section, “equipment”) supplied or made available to the Seller by the Buyer, which equipment shall be held, worked on and used at the Buyer’s risk.  Quantities of equipment supplied by the Buyer shall allow for normal spoilage and fair wear and tear.

18.2       The Seller shall not be responsible for any loss, damage, cost, or expense arising from, or from any defect, mistake or inaccuracy in any equipment specified or supplied by the Buyer.  Any loss, damage, cost, or expense arising therefrom shall be for the sole account of the Buyer who shall indemnify the Seller accordingly.

18.3       The Seller’s liability for equipment specified or provided to the Seller by the Buyer or otherwise held or worked on by the Seller on behalf of the Buyer shall be limited to the lesser of the basic raw material cost of the equipment or an independent external valuation of such equipment.

18.4       Prior to its delivery to the Seller or to the Seller being granted access to it the Buyer shall notify the Seller of the nature of any equipment to be held or worked on by the Seller under the Contract, shall provide adequate warnings and instructions where such equipment is or may be hazardous to safety and shall ensure that it complies with any requirements or descriptions of or in the Contract.

18.5       The Buyer shall indemnify the Seller for any liability in relation to such equipment which could not have been prevented by the Seller acting in accordance with the Buyer’s reasonable written instructions and was not caused by the negligence or willful default of the Seller or its employees.

18.6       The Buyer shall indemnify the Seller against any liability in relation to the contamination, damage or loss (due to contact with any radioactive, chemical or other hazardous materials or by the negligence of the Buyer or its representatives) of any instruments, components, parts or materials brought by the Seller to the Buyer’s premises for the purposes of performance of the Contract.

19. GENERAL

19.1       The Buyer shall indemnify the Seller against all liability in relation to any specification, design, information or component which the Buyer has supplied or arranged for the supply to the Seller and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.

19.2       No indulgence, forbearance, partial exercise of any right or remedy or previous waiver shall prejudice any rights or remedies.  Remedies shall be cumulative, and no choice of remedy shall preclude any other remedy.

19.3       The Buyer shall not assign, mortgage, charge, sub-let or otherwise dispose of the Contract or any rights thereunder in whole or in part.

19.4       After termination (howsoever caused) or cancellation, Sections 3.2, 4, 11, 15, 17 and 18 shall continue in full effect.

19.5       This Contract and any disputes between the Buyer and the Seller relating to the subject matter of this Contract shall be governed by and construed in accordance with the laws of the State of Massachusetts, excluding: (i) its conflicts of laws principles that would apply the laws of any other jurisdiction; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.

19.6      The Seller and the Buyer each hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the State of Massachusetts.  The Buyer hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to this Agreement in Massachusetts and further irrevocably waives any claim that Massachusetts is not a convenient forum for any such suit, action or proceeding.