Conditions of sale

1. DEFINITIONS

“The Company” means Mytogen Limited.
“The Customer” means the customer of the Company.
“The Contract” means the contract for the sale of the Goods by the Company to the Customer.
“The Goods” means the goods forming the subject of the Contract including parts and components of or materials incorporated in them.
“The Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Customer.

2. QUOTATION

Quotations by the Company shall be open for acceptance within the time period stipulated in them and be subject to confirmation by the Company at the time of acceptance.

3. EXISTENCE OF CONTRACT

3.1 No Contract shall come into existence until the Customer’s order (however given) is accepted by the earliest of a) The Company’s written acceptance. b) Delivery of the goods and c) The Company’s invoice (or if there is to be a normal acceptance procedure) the order form overleaf has been completed and signed on behalf of the Customer and the order acknowledgement overleaf has been signed on behalf of the Company.

3.2 These conditions shall be incorporated into the contract to the exclusion of any terms and conditions stipulated or referred to by the Customer.

3.3 No variations or amendments of the Contract shall be binding on the Company unless confirmed by it in writing.

3.4 The Company’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, or in any way claim for breach of any such representations which are not so confirmed in writing.

4. ORDERS AND SPECIFICATIONS

4.1 The customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the company to perform the Contract in accordance with its terms.

4.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Company Quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Company).

4.3 If the Goods are manufactured in accordance with any design or specification provided or made by the Customer, the Customer shall indemnify the Company from and against all loss claims, costs, expenses and liability of any nature in connection with them including any claim whether actual or alleged, that the design or specification infringes upon any patent, copyright design, trade mark or other industrial or intellectual property rights of any third party.

4.4 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory EC requirements or where the Goods are supplied to the Company’s specification, which do not materially affect their performance.

4.5 No Order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profits) costs (including the cost of labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

5. PRICES

5.1 Prices are ex works and exclude VAT and other taxes and duties. (Prices invoiced are calculated in respect of the quantity of Goods actually delivered irrespective of the quantity in respect of which any quotation was issued).

5.2 The Company shall have the right (in respect of any uncompleted portion of the Contract) to adjust its prices for any increase in the price of (materials, parts, labour, transport, changes in work or delivery schedules or quantities or any other) costs of any kind arising for any reason after the date of the Contract.

5.3 Small Orders, or orders whose invoice total is less than GBP £500, are subject to a minimum order surcharge of GBP £50 which shall be quoted on request for on the Company’s order acknowledgement

6. PAYMENT

6.1 All sums due in respect of the Goods are payable without discount of any kind in pounds sterling by 30 days from the date of delivery and in no circumstances shall the Customer be entitled to make a deduction or withhold payment for any reason at all.

6.2 Time for payment shall be of the essence of the Contract. Without prejudice to any other rights of the Company if the Customer fails to make any payment by the due date the Customer shall pay interest on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgement) on a daily basis rate of 5% p.a. over the base rate from time to time quoted by Barclays Bank Plc. and reimburse to the Company all costs and expenses (including legal costs) incurred in the collection of any overdue amount. Should the Customer default in paying any one invoice the accounts payable on all other invoices regardless of whether they have fallen due shall become immediately due and payable.

7. TITLE

7.1 For the purpose of Section 12 of the Sale of Goods Act 1979 the Company shall transfer only such title or rights in respect of the Goods as the Company has and if the Goods are purchased from a third party shall transfer only such title and rights as that party had and has transferred to the Company.

7.2 Notwithstanding delivery and the earlier passing of risk of the Goods, or any other provisions of these Conditions, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds the payment in full of the price of the Goods and all other Goods agreed to be sold by the Company to the Customer for which payment is then due.

7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailiff, and shall keep the goods separate from those of the Customer and third parties and properties stored, protected and insured and identified as the Company’s property. Until that time that the Customer has be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of the sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds from any moneys or property of the Customer and third parties, and in the case of tangible proceeds, properly stored, protected and insured.

7.4 Until such time as the property in the Goods passes to the Customer the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.

7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.

7.6 The Company shall be entitled to maintain an action for the price of any Goods notwithstanding that the title to them has not passed to the Customer.

8. RISK DELIVERY AND PERFORMANCE

8.1 Goods are delivered to the Customer when the Company makes them available to the Customer or any agent of the Customer or any carrier (who shall be the Customers agent whoever pays his charges) at the Company’s premises or other delivery point agreed by the Company.

8.2 Risk in the Goods passes when they are delivered to the Customer pursuant to these conditions.

8.3 The Company may at its discretion deliver the Goods by instalments in any sequence.

8.4 Where the Goods are delivered by instalments, each instalment shall be deemed to be the subject of a separate contract and no default or failure by the Company in respect of any one or more instalments shall violate the Contract in respect of the Goods previously delivered or undelivered goods.

8.5 The Company may deliver to the Customer and the Customer shall accept in satisfaction of the Contract a lesser number than ordered.

8.6. Time for delivery shall not be of the essence unless previously agreed by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.

8.7 If the Customer fails to take delivery of the Goods or any part of them on the due date and fails to provide any instructions, documents, licenses, consents or authorisation required to enable the Goods to be delivered on the due date, the Company shall be entitled upon giving written notice to the Customer to store or arrange the storage of the Goods, and then risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Company all costs and expenses including storage and insurance charges arising from its failure.

8.8 The Company shall not be liable for any penalty loss, injury, damage or expense arising from delay or failure in delivery or performance from any cause at all nor shall any delay or failure entitle the Customer to refuse to accept any delivery or performance of or repudiate the Contract.

9. CLAIMS NOTIFICATION

9.1 Any claim for non-delivery of Goods shall be notified in writing by the Customer within 10 days of the date of the Company’s invoice.

9.2 Any claim that the Goods have been delivered damaged are not of the correct quality or do not comply with their description shall be notified to the Company by the Customer verbally within 3 days and in writing within 7 days of their delivery.

9.3 Any alleged defect shall be notified in writing by the Customer within 7 days of the delivery of the Goods or in the case of any defect which is not reasonable apparent on inspection within 7 days of the defect coming to the Customer’s attention and in any event within 2 months from the date of delivery.

9.4 Any claim under this condition must be in writing and must contain full details of the claim including the part numbers of any allegedly defective goods.

9.5 The Company shall be afforded reasonable opportunity and facilities to investigate any claims under this condition including the right to inspect the Goods in question at the premises of the Customer and the Customer shall it so request in writing by the Company promptly return any Goods subject of any claim and any packaging securely packed and carriage paid to the Company for examination.

9.6 The Company shall have no liability with regard to any claim in any respect of which the Customer has not complied with the provisions of these Conditions, including without limitation non- payment of the price of the Goods or any part of the price.

10. SCOPE OF THE CONTRACT

10.1 Under no circumstances shall the Company have any liability of whatever kind for:-

10.1.1 Any defects resulting from wear and tear accidental improper use by the Customer or use by the Customer otherwise than in accordance with the instructions or advice of the Company or the manufacturer of any Goods or neglect or from any instructions or materials provided by the Customer.

10.1.2 Any Goods which have been adjusted modified or repaired otherwise than by the Company.

10.1.3 The suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company.

10.1.4 Any substitution by the Company of any materials or components not forming part of any specification of the Goods agreed in writing by the Company.

10.1.5 Any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions submitted by the Company contained in the Company’s catalogue, price lists or elsewhere since they are mainly intended to represent a general idea of the Goods and not to form part of the Contract or be treated as representations.

10.1.6 Any technical information recommendations statements or advice furnished by the Company its servants or agents not given in writing in response to a specific written request from the Customer before the Contract is made.

10.1.7 Any variations in the quantities or dimensions of any Goods or changes of their specifications or substitution of any materials or components, if the variation or substitution does not materially affect the characteristics of the Goods.

11. EXTENT OF LIABILITY

11.1 The Company shall have no liability to the Customer (other than liability for death or personal injury resulting from the Company’s negligence) for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the Contract or any negligence breach of statutory or other duty on the part of the Company or in any way out of or in connection with the performance or purported performance of or failure to perform the Contract except in accordance with this condition.

11.2 If the Customer establishes that the Goods have not been delivered, have been delivered damaged are not of the correct quality or do not comply with their description the Company shall at its option replace with similar Goods any Goods which are missing, lost, damaged or do not comply with their description, or allow the Customer credit for their invoice value or repair any damaged goods.

11.3 If the Customer establishes that the Goods are defective the Company shall as its option replace the Goods with similar Goods or repair any defective Goods, allow the Customer credit for their invoice to the extent that the Goods are not of the Company’s manufacture, assign to the Customer (so far as the Company is able to do so) any warranties given by the manufacturer of the Goods to the Company.

11.4 The delivery of any repaired or replacement Goods shall be at the Company’s premises or other delivery point specified for the Goods.

11.5 Where the Company is liable in accordance with this condition in respect of only some or part of the Goods the Contract shall remain in full force and effect in respect of the other or other parts of the Goods and no set off or claim shall be made by the Customer against or in respect of such other or other parts of the Goods.

11.6 No claim against the Company shall be entertained for any defect arising from any design or specification provided or made by the Customer or if any adjustments alterations or other work has been done to the Goods by any person other than the Company.

11.7 The Company shall not be liable where any Goods the price of which does not include carriage are lost or damaged in transit and all claims by the Customer shall be made against the carrier. Replacements for such lost and damaged Goods will, if available, be supplied by the Company at the prices ruling at the date of dispatch.

11.8 In no circumstances shall the liability of the Company to the Customer under this condition exceed the invoice value of the Goods.

12. GENERAL

12.1 The Company may sub-contract the performance of the Contract in whole or part.

12.2 The Contract is personal to the Customer and shall not be assignable by the Customer without the express written consent of the Company.

12.3 The Company shall have a lien on the Customer’s property in the Company’s possessions for all sums due at any time from the Customer and shall be entitled to use sell or dispose of the property as agent for and at the expense of the Customer and apply the proceeds in and towards payment of such sums on 28 days’ notice in writing to the customer. Upon accounting to the Customer for any balance remaining after payment of any sums due to the Company and the costs of sale or disposal the Company shall be discharged of any liability in respect of the Company’s property.

12.4 The Company may at its discretion suspend or terminate the supply of any goods if the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contractor any other agreement with the Company or becomes insolvent, makes any voluntary arrangement with its creditors or becomes subject to administration order or (being an individual) becomes bankrupt (or being a company) has a receiver appointed over its business or its compulsory or voluntarily wound up or the company reasonable believes that any of those events may occur, and in the case of termination shall be entitled to forfeit any deposit paid.

12.5 All tools, patents, materials, drawings, specifications and other data provided by the Company shall remain its property and all technical information, patentable or un-patentable, copyright and registered designs arising from the execution of any orders shall become the property of the Company.

12.6 The Contract and its subject matter are confidential and shall not be disclosed or used for any unauthorized purpose.

13. FORCE MAJEURE

The Company shall not be liable for any failure in the performance of any of its obligations under the Contract caused by factors outside its control.

14. LAW AND CONSTRICTIONS

14.1 The Company shall be governed by English law and the Customer consents to the exclusive jurisdiction of the English courts in all matters regarding the Contract except to the extent that the Company invokes the jurisdiction of the Courts of any other Country.

14.2 The Headings of conditions are for convenience of reference only and shall not affect their interpretation.

15. NOTICES

Any notice to be given under the Contract shall be in writing and sent by facsimile transmission or forwarded by first class prepaid registered or recorded delivery letter post to the receiving party at its business address as last notified in writing to the other party and shall be deemed to have been given on the date of the facsimile transmission or on the date following that on which the notice was posted.

CONDITIONS OF PURCHASE

1. Definitions

In these conditions “the Purchaser” means Mytogen Limited, “the Supplier” means the supplier named in the (written) Purchase Order (inc. a valid purchase order number (no other forms of order are valid e.g. verbal orders)) and “the Goods & Services” means any such goods as are to be supplied to the Purchaser by the Supplier (or by any of the Supplier’s Sub-contractors) pursuant to or in connection with this order(“the Order”). Purchase Orders greater than £50,000 will need to be accompanied by written Mytogen board approval.

2. The Goods/Services

2.1 The Goods or Services shall be to the reasonable satisfaction of the Purchaser and shall conform in all respect with any particulars specified in this Order and in any variations thereon.

2.2 The Goods shall conform in all respect with the requirement of any statutes, orders, regulation or bye-laws from time to time in force.

2.3 The Goods shall be fit and sufficient for the purpose which such goods are ordinarily used and for any particular purpose made know to the supplier by the Purchaser and the Purchaser relies on the skill and judgment of the supplier in the supply of the Goods and the execution of the Order.

3. The Price

3.1 The price of the Goods shall be as stated on the Purchase Order and no increase will be accepted by the Purchaser unless agreed by him in writing before the execution of the Order.

3.2 Unless otherwise agreed in writing by the Purchaser, the Supplier shall render a separate invoice in respect of each consignment delivered under this Order. Payment shall be due 30 days after receipt of the goods or the correct invoice therefore, whichever is the later.

3.3 The Client requires the contractor to pay their subcontractors (associated with the contract) within 30 days from receipt of a valid invoice as defined by the subcontract requirement.

4. Delivery

4.1 The Goods shall be delivered to the place named on the Purchase Order. Any access to premises and any labour and equipment that may be provided by the Purchaser in connection with the delivery shall be provided without acceptance by the Purchaser of any liability whatsoever and the Supplier shall indemnify the Purchaser in respect of any actions, suits, claims, demands, losses, charge costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Supplier or any of his sub-contractor.

4.2 Where any access to the premises is necessary in connection with delivery or installation the Supplier and his sub-contractors shall at all times comply with the reasonable requirements of the Purchaser’s Head of Security, including vehicle and personnel searches.

4.3 The time of delivery shall be of the essence and failure to deliver within the time promised or specified shall enable the Purchaser (at his option) to release himself from any obligation to accept and pay for the Goods and/or to cancel all or part of the order therefore, in either case without prejudice to his other rights and remedies.

5. Property and Risk

Property and risk in the Goods shall without prejudice to any of the rights or remedies of the Purchaser (including the Purchaser’s right and remedies under Condition 7 thereof) pass to the Purchaser at the time of delivery.

6. Damage in Transit

On dispatch of any consignment of the Goods the Supplier shall send to the Purchaser at the address for delivery of the Goods and advice note specifying the means of transport, the place and date of dispatch, the number of packages and their weight and volume. The Supplier shall free of charge and as quickly as possible either repair or replace (as the Purchaser shall elect) such of the Goods as may either be damaged in transit or having been placed in transit fail to be delivered to the Purchaser provided that:- (a) In the case of damage to such Goods in transit the Purchaser shall within thirty days of delivery give notice to the supplier that the Goods have been damaged. (b) In case of non-delivery the Purchaser shall (provided that the Purchaser has been advised of the dispatch of the Goods) within ten days of the notified date of delivery give notice to the supplier that the Goods have not been delivered.

7. Inspection, Rejection and Guarantee

7.1 The Supplier shall permit the Purchaser or its authorized representative to make any inspection or test he may reasonably require and the Supplier shall afford all reasonable facilities and assistance free of charge at its premises. No failure to make complaint at the time of such inspection or test and no approval given during or after such test or inspection shall constitute a waiver by the Purchaser of any rights or remedies in respect of the Goods.

7.2 The Purchaser may by written notice to the Supplier reject any of the Goods which fail to meet requirements specified herein. Such notice shall be given within a reasonable time after delivery to the Purchaser of the Goods concerned. If the Purchaser shall reject any of the Goods pursuant to this condition the Purchaser shall be entitled (without prejudice) to his other rights and remedies either:- (a) to have the Goods concerned as quickly as possible either repaired by the supplier or (as the Purchaser) shall elect replaced by the Supplier with Goods which comply in all respect with the requirements specified herein:- or (b) To obtain a refund from the Supplier in all respect of the Good concerned.

7.3 The guarantee period applicable to the goods shall be 12months from putting into service or 12 months from delivery, whichever shall be the shorter (subject to any alterative guarantee arrangement agreed in writing between the Purchaser and the Supplier). If the Purchaser shall within such guarantee period or within 30 days thereafter give notice in writing to the Supplier of any defect in any of the Goods as may have arisen during such guarantee period under proper and normal use the Supplier shall (without prejudice to any of other right and remedies which the purchaser may have) as quickly as possible remedy such defects (whether by repair or replacement as the Purchaser shall elect) without cost to the Purchaser.

7.4 Any Goods rejected or returned by the Purchaser as described in paragraphs 7.2 & 7.3 shall be returned to the Supplier at the Supplier’s risk and expense.

8. Labelling and Packing

8.1 The Goods shall be packed and marked in a proper manner and in accordance with the Purchaser’s instruction and any statutory requirements and any requirements of the carriers. In particular the Goods shall be marked with the Order Number the net, gross and tare weight, the name of the contents shall be clearly marked on each container and all containers of hazardous goods (and all documents relating thereto) shall bear prominent and adequate warnings. The Supplier shall indemnify the Purchaser against all actions, suits, claims, demands losses, charges, cost and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this condition.

8.2 All packaging materials will be considered non-returnable and will be destroyed unless the Supplier’s advice note states that such materials will be charged unless returned. The Purchaser accepts no liability in respect of the non-arrival at the Supplier’s premises of empty packages returned by the Purchaser unless the Supplier shall within ten days of receiving notice from the Purchaser that the packages have been dispatched notify the Purchaser of such non-arrival.

8.3 Maximum use must be made of recycled materials in the manufacturing of crates, pallets, boxes, cartons, cushioning and other forms of packing, where these fulfil other packing specification. Packaging specification should be reviewed periodically to ensure that no unnecessary limitation on the use of recycled materials exists.

9. Patents and Information

9.1 It shall be a condition of this Order that, except to the extent that the Goods are made up in accordance with design furnished by the purchaser, none of the Goods will infringe any patent, trade mark, registered design, copyright or other right in the nature of industrial property or any third party and the Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of the condition.

9.2 All rights (including ownership and copyright) in any specification, instruction, plans, drawings, patterns, models, design or other materials furnished to or made available to the supplier by the Purchaser pursuant to this Order shall remain vested solely in the Purchaser and the Supplier shall not (except to the extent necessary for the implementation of this Order) without prior written consent of the Purchaser use or disclose any such specification, instruction, plans, drawings, patterns, models, design or any information (whether or not relevant to this Order) which the supplier may obtain pursuant to this Order and in particular (but without prejudice to the generality of the forgoing) the Supplier shall not refer to the Purchaser or the Order in any advertisement without the Purchaser’s prior written agreement.

10. Health and Safety

The Supplier represents and warrants to the Purchaser that the Supplier has satisfied himself that all necessary test and examinations have been made or will be made prior to delivery of the Goods to ensure that the Goods are designed and constructed so as to be safe and without risk to the health or safety of persons using the same, and that he has made available to the Purchaser adequate information about the use for which the Goods have been designed and have been tested and about any condition necessary to ensure that when put to use the Goods will be safe and without risk to health.

The supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this condition.

11. Indemnity and Insurance

11.1 Without prejudice to any rights or remedies of the Purchaser (including the Purchaser’s right and remedies under Condition 7 hereof) the Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any damage to property or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any defect in the Goods or the negligent or wrongful act or omission of the Supplier.

11.2 The Supplier shall effect with a reputable insurance company a policy or polices of insurance covering all the matters which are the subject of indemnities under these conditions and shall at the request of the Purchaser produce relevant policy or policies together with receipt or other evidence of payment of the latest premium due there under.

12. Recovery of Sums

Due Whenever under this Order any sum of money is recoverable from or payable by the Supplier, that sum may be deducted from any sum then due, or which at any later time may become due, to the Supplier under this Order or under any other agreement or contract with the Purchaser or with any department, agency or representatives of the Purchaser.

13. Assignment and Sub-contracting

13.1 The Supplier shall not without the written consent of the Purchaser assign the benefit or burden of this Order or any part thereof.

13.2. No sub-contracting by the Supplier shall in any way relieve the Supplier of any of his responsibilities under the Offer.

14. Notices

Any notice given under or pursuant to the Order may be sent by hand or by post or by registered post or by the recorded delivery service or transmitted by telex, telemessage, facsimile transmission or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the address of the party shown on the face hereof, or to such other address as the party may by notice to the other have substituted thereof, shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.

15. Headings

These Conditions shall be governed by and construed in accordance with English law and the Supplier hereby irrevocably submits to the jurisdiction of the English courts. The heading to Conditions shall not affect their interpretation.

16. Governing Law

These Conditions shall be governed by and construed in accordance with English law and the Supplier hereby irrevocably submits to the jurisdiction of the English courts. The submission to such jurisdiction shall not (and not be construed so as to) limit the right of the Purchaser to take proceeding against the Supplier in any other court of competent jurisdiction , nor shall the taking of proceeding in any way one or more jurisdiction prelude the taking of proceeding in any other jurisdiction whether concurrently or not. Any changes to the above terms and conditions must be agreed in writing and signed by a Mytogen Limited director.

Copyright 2001-2016 Mytogen International Ltd