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Terms and Conditions for the Sale of Products

These Conditions apply to and govern all sales of Products by Cytocell Limited a company incorporated in England and Wales under number 04231155, whose registered office is at Unit 4 Technopark, Newmarket Road, Cambridge, Cambridgeshire, CB5 8PB (Cytocell).

1. DEFINITIONS

In these Conditions the following words have the following meanings:

Conditions means these terms and conditions;
Contract means the contract for the purchase of the Products by the Customer from Cytocell in accordance with these Conditions including a written quotation of Cytocell which is accepted by the Customer, or any Order which is accepted by Cytocell;
Cytocell Affiliate means Oxford Gene Technology IP Limited, Oxford Gene Technology (Operations) Limited, Oxford Gene Technology, Inc. and any other subsidiary for the time being of Oxford Gene Technology IP Limited;
Intellectual Property Rights means patents, copyright, registered and unregistered design rights, utility models, trade marks (whether or not registered), database rights, rights in know-how and confidential information and all other intellectual and industrial property rights and similar or analogous rights existing under the laws of any country and all pending applications for and rights to apply for or register such rights;
Order means the Customer's order for the Products, as set out in the Customer's written acceptance of Cytocell’s quotation or tender or in the Customer's written order, as the case may be; and
Products means products manufactured or supplied by Cytocell.

2. BASIS OF THE SALE

2.1. Any Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. An Order shall be deemed accepted on the earlier of Cytocell’s written acceptance of the Order and the dispatch of the Products, at which point the Contract shall come into existence and Cytocell will sell and the Customer will purchase the Products in accordance with the Contract.

2.2. No amendment of, variation of or addition to the Conditions governing the Contract will be binding unless accepted by the authorised representatives of both Cytocell and the Customer in writing.

2.3. Any typographical, clerical or other error or omission in any sales literature, price list, quotation, acceptance of offer, invoice or other document or information issued by Cytocell shall be subject to correction without any liability on the part of Cytocell.

3. INTENDED USE OF THE PRODUCTS

3.1. Unless approved under local regulations for diagnostic use or as Analyte Specific Reagents (where applicable), the Products are intended for research use only and are not suitable for diagnostic or drug testing. In no cases are they suitable for administration to humans.

4. QUOTATIONS AND PRICE

4.1. In the event that a written quotation or tender for the Products is issued by Cytocell, such quotation or tender is provisional and may be altered to take account of any change taking place between the date of quotation or tender and Cytocell 's acceptance of the Order and in any event the quotation or tender shall expire 30 days after the date of its issue unless otherwise agreed in writing by Cytocell.

4.2. The price of Products will be the price in force at the time of dispatch and Cytocell's price list does not constitute an offer to sell at the prices set out in it.

4.3. All prices are exclusive of VAT unless otherwise stated and the Customer will pay any and all tax duties and other government charges payable in respect of the Products in accordance with UK legislation in force at the tax point and all other taxes and duties payable in connection with the supply of the Products to the Customer and its export and import into any territory.

4.4. The price of the Products includes packaging, and such packaging is non-returnable.  Unless otherwise expressly stated the price and any quotation do not include carriage and insurance during transport.

5. PAYMENT

5.1. Unless otherwise agreed in writing payment of all invoices will be made by the Customer to Cytocell in full in Pounds Sterling no later than thirty (30) days from the date of invoice.

5.2. In the event of late payment by the Customer Cytocell will be entitled, without limiting any other rights and remedies it may have to:

  1. suspend deliveries and/or cancel any of its outstanding obligations under the Contract;
  2. levy a service charge to cover administrative and other associated costs in relation to overdue accounts at the rate of 3% per month on all unpaid accounts; and
  3. charge interest on any outstanding amount accruing from time to time at the rate of 8% per annum above the base rate from time to time of Barclays Bank plc or the amount prescribed in the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is greater) from the due date until the outstanding amount is paid in full, whether before or after judgement.

5.3. The Customer shall have no right to set off any amounts owing to it by Cytocell against unpaid invoices due to Cytocell.

5.4. Cytocell shall have the right for reasonable cause to withdraw or refuse credit facilities or to require from the Customer cash on or before delivery or security for payment and to withhold delivery until such requirement is complied with.

5.5. Any claim or query by the Customer in respect of the invoiced price of the Products or services must be notified to Cytocell by the Customer within the period referred to in condition 4.1.

6. DELIVERY AND ACCEPTANCE

6.1. Unless otherwise agreed in writing, delivery shall take place when the Products are passed to the carrier or shipping agent or to the Customer's representative at the Customer’s premises, whichever shall occur first.

6.2. The Customer will ensure that adequate and safe facilities and procedures exist for receipt of the Products at its premises at the time of delivery by Cytocell or its agent or carrier and warrants to Cytocell that the site where it intends to use the Products is suitable in all respects for their intended use and is licensed in accordance with any relevant local regulations.

6.3. All delivery dates are quoted in good faith but Cytocell reserves the right to alter them notifying the Customer as soon as is reasonably practicable. Cytocell does not accept any liability for any direct, indirect, consequential or economic loss or damage due to delay in delivery however caused.

6.4. The Customer will not be entitled unreasonably to delay delivery or refuse to accept delivery. However, if in the opinion of Cytocell the Customer:

  1. is not ready to receive the Products on the day intended, oR
  2. fails to give Cytocell adequate instructions, or
  3. fails to collect the Products intended for collection, or
  4. fails to comply with the provisions of condition 6.2 in whole or in part, then the Customer shall be liable for any loss occasioned to Cytocell by its neglect, refusal or inability to take delivery of the Products and also for such costs and expenses as Cytocell may incur in storing the Products and, if applicable, re-delivering the same. In addition, Cytocell shall have the right to sell the Products at the best price readily obtainable and (after deducting all reasonable expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

6.5. The Customer will promptly notify Cytocell in writing in the event that the Products do not arrive within seven (7) days of their anticipated receipt.

6.6. The Customer will inspect the Products within seven days of receipt and failure to notify Cytocell in writing of any defect or any other proper objection to the Products or their packaging within such a period shall constitute acceptance of the Products by the Customer.

7. RISK AND TITLE

7.1. The risk in the Products will pass to the Customer on delivery.

7.2. The Products supplied by Cytocell (including any of the Products supplied without charge as part of any sales offer or incentive) shall remain the property of Cytocell until Cytocell has received in cash or cleared funds payment in full of all monies owing by the Customer to Cytocell in respect of the Products under the Contract and until such time, the Customer will hold the Products as fiduciary agent and bailee for Cytocell and keep them insured on OGT's behalf for their full price against all risks with an insurer that is reasonably acceptable to Cytocell.

7.3. Notwithstanding that property in the Products has not passed to the Customer, Cytocell will be entitled to sue the Customer for the price of the Products if not paid on the due date.

7.4. In the event that the Customer being a company enters into liquidation or has a winding up order made against it or has a receiver appointed in respect of its assets or being an individual or firm becomes bankrupt or in any other way ceases, or threatens to cease, to carry on business Cytocell shall be entitled immediately to terminate the Contract without notice and if the Products have been delivered but not paid for then, provided that such Products have not been resold and without limiting any other right or remedy Cytocell may have, Cytocell may at any time require the Customer to deliver up such Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored in order to recover them.

8. WARRANTY AND LIMITATIONS OF LIABILITY

8.1. Cytocell's Products are warranted to meet any product specifications in effect at the time of shipment.  Notice of non-conforming or faulty Products must be made to Cytocell within 30 days of receipt of the Products subject to condition8.6. This warranty limits Cytocell's liability to the replacement of the Product only. Cytocell will not be liable under the warranty for any damage or loss arising from wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow instructions or out of the use, the result of use or the inability of the Customer to use the Products.

8.2. Except for the warranty in condition 8.1 all warranties, conditions, terms, undertakings and obligations on the part of Cytocell implied by statute, common law, custom, trade usage, course of dealing or in any other way are, to the extent permitted by law, excluded (except for the implied warranty or title).

8.3. The Customer acknowledges that it has not been induced to enter into the Contract by any representation or by any warranty (whether oral, or in writing, or in any other form) except those expressly made part of the Contract. The Customer waives all claims for breach of any warranty and all claims for any misrepresentation, (negligent or of any other kind, unless made by Cytocell fraudulently) which is not specifically set out in the Contract as a warranty.

8.4. Nothing in this Agreement limits Cytocell's liability for fraud, or death, or personal injury arising as a result of Cytocell's negligence or any other liability which may not, by law, be excluded.

8.5. Subject to condition 8.4:

  1. Cytocell will not be liable to the Customer for any loss of profit, loss of revenue, loss of data, loss of opportunity, loss of business and loss of goodwill (in each case whether direct or indirect) or for any indirect, or consequential loss, damage, costs, expenses and other claims (whether caused by the negligence of Cytocell, its servants, agents sub-contractors or otherwise) which arise out of or in connection with the Products or in any other way out of the Contract; and
  2. the maximum liability of Cytocell under or in connection with the Contract will not exceed the amounts which have been paid or which have become payable by the Customer whether caused by the negligence of Cytocell, its servants, agents sub-contractors or otherwise.

8.6. The Customer will ensure that the specification of the Products ordered is suitable and safe for the intended use or environment of use except where it makes known details of such use to Cytocell in writing prior to conclusion of the Contract in such a way as clearly to place reliance on Cytocell's special skills and such details are accepted by Cytocell in writing as forming part of the Contract.

8.7. The Customer will handle the Products in a suitable and safe manner and will comply with any instructions supplied to it by Cytocell. The Customer will also pass on to users (including purchasers and users of other goods and equipment into which the Products are incorporated) all relevant safety information.

8.8. The Customer will ensure that Genetically Modified Organisms as defined in the Health and Safety Executive Directive 90/219/EEC on the contained use of Genetically Modified Organisms (Directive) are used only under suitable conditions of contained use in accordance with the Directive.

8.9. Where Cytocell experiences technical difficulties in the production of nonstandard or custom-made Products it may cancel the order for the Products without being liable to the Customer in any way.

8.10. Where the Customer supplies designs, drawings and specifications to Cytocell to enable it to manufacture non-standard or custom-made Products the Customer warrants that such manufacture will not infringe the Intellectual Property Rights of any third party.

8.11. The Customer acknowledges that it must comply with all applicable laws, regulations and orders with regard to export and trade control, including those that may relate to the export of goods, software or technical information (regardless of whether tangible or intangible), including (without limitation) the Foreign Exchange and Foreign Trade Act/Regulations of Japan and the Export Administration Act/Regulations and/or International Traffic in Arms Regulations of the United States, as amended from time to time, and the Customer agrees to comply with all such laws, regulations and orders to the extent applicable to it.  The Customer will not export, directly or indirectly, any goods, software or technical information (regardless of whether tangible or intangible) without first obtaining any required export license or government approval.  In the event any goods, software or technical information (regardless of whether tangible or intangible) is export-controlled, the Customer shall provide Cytocell with written notice containing the nature of the export-controlled goods, software or technical information (regardless of whether tangible or intangible), prior to any shipment or exchange of export-controlled goods, software or technical information (regardless of whether tangible or intangible).  In addition, the Customer agrees that it will not use, transfer or convey (including by electronic transfer such as e-mail) to any person any goods, software or technical information (regardless of whether tangible or intangible) obtained from Cytocell under the Contract for the purposes of developing, manufacturing or stockpiling conventional weapons, nuclear weapons, chemical weapons, biological weapons or weapons delivery vehicles.

9. INDEMNITIES

9.1. The Customer shall indemnify Cytocell in respect of any claim which may be made against Cytocell:

  1. that the use to which the Products are put constitutes a breach of section 6 Health and Safety at Work Act 1974, or any other relevant United Kingdom or overseas safety legislation;
  2. that the use to which the Products are put infringes the patent, copyright or other Intellectual Property Rights of any third party; or
  3. arising out of the failure by the Customer to observe the terms of the Contract.

9.2. The provisions of condition 9.1 shall not apply where the claim arises as a result of the negligence of Cytocell or the use of the Products by the Customer in accordance with Cytocell's written instructions.

10. FORCE MAJEURE

10.1. Cytocell shall not be liable for any failure to fulfil the Contract or any term or condition of the Contract if fulfilment has been delayed, hindered or prevented by circumstances beyond its reasonable control including but not limited to fire, explosion, flood, tempest, unusually adverse weather conditions, failure or shortage of power supplies, fault or failure of plant or machinery, war, hostilities, riot, acts of terrorism, strikes, lock-outs or other industrial action or trade dispute (Force Majeure Event).

10.2. Cytocell will promptly notify the Customer if a Force Majeure Event arises and during the period in which Cytocell is prevented from performing the Contract the Customer will be entitled after giving Cytocell written notice of its intention to do so to purchase products elsewhere at its own cost and risk and Cytocell shall not be obliged to make up deficiencies which arise as a result.

10.3. If a Force Majeure Event exceeds one-month Cytocell may cancel the Contract without liability.

11. INTELLECTUAL PROPERTY RIGHTS

11.1. Unless otherwise agreed with the Customer in the case of custom-made Products, all Intellectual Property Rights in the Products and their design and contents, and in the methods of using them for their intended use, are the property of Cytocell or its licensors, and all Intellectual Property Rights arising from the execution of an Order shall vest in Cytocell.

11.2. Nothing in these Conditions shall be construed as granting to the Customer any licence under any Intellectual Property Rights of Cytocell except as required by the Customer in order to use the Products for the intended use set out in condition 3.

12. MISCELLANEOUS

12.1. The Customer undertakes not to use (other than on the Products or as separately licensed), or remove, any trademarks or trade names applied by Cytocell to the Products nor to do or permit anything whereby the goodwill and reputation of such trademarks is prejudiced or damaged.

12.2. Cytocell may perform any of its obligations or exercise any of its rights under the Contract by itself or through a Cytocell Affiliate, provided that any act or omission of any such Cytocell Affiliate shall be deemed to be the act or omission of Cytocell.

12.3. If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.

12.4. Unless expressly stated otherwise, no one other than a party to the Contract shall have any right to enforce any of its terms and conditions.

12.5. Any notice permitted or required under the Contract will be given in writing and will be sent by first class post or by courier to the address of the relevant party specified in the Contract, or to such other address as the intended recipient may from time to time notify to the other party in accordance with this condition 12.

13. GOVERNING LAW AND JURISDICTION

13.1. The Contract shall be governed and construed in accordance with the laws of England.  The English Courts will have exclusive jurisdiction to deal with any dispute which may arise out of or in connection with the Contract.