Effective date: v 1.04.2024
By supplying goods or services to biomodal Limited (biomodal) in accordance with a Purchase Order, you (Supplier) are bound by these Terms and Conditions. Any terms or conditions in Supplier´s acknowledgment, invoice, other similar forms or documents of Supplier including, without limitation package inserts and labels, relating to the Goods, that are inconsistent with or in addition to, or that alter in any way, the provisions of this Agreement, are hereby null and void. In the event of any inconsistency or conflict between these Terms and Conditions and the Purchase Order, the following order of precedence shall apply: (i) Purchaser machine-typed provisions of the Purchase Order; (ii) machine-typed provisions of the Specifications; (iii) these Terms and Conditions.
- Definitions
- In these Conditions:
- “Affiliate” means any company controlling, controlled by or under common control with Purchaser where control means direct or indirect ownership of at least 50% of the voting stock or interest in a company or control of the composition of the board of directors
- “Contract” means the Purchase Order provided by Purchaser to Supplier, including these Conditions which form a part thereof, and any Specifications.
- “Delivery Date” means the date on which the Goods are to be delivered to Purchaser, as specified in the Purchase Order.
- “Goods” means all goods, items, articles, materials, apparatus, equipment, labour, work, services, work product, and operations of Supplier, whether specified, listed, mentioned, scheduled or implied in the Agreement.
- “Mandatory Policies” means the Purchaser’s mandatory business policies applicable to its suppliers, notified to the Supplier from time to time.
- “Price” means the price of the Goods as specified in the Purchase Order;
- “Purchaser” means the biomodal Limited or its Affiliate named on the Purchase Order;
- “Purchase Order” means the document setting out Purchaser’s requirements for the Contract;
- “Purchaser Confidential Information” means any of the following information of Purchaser or a Purchaser Affiliate that was or is disclosed to, provided to, or otherwise obtained or observed by Supplier: (i) this Agreement, the subject matter of this Agreement, and the terms of this Agreement; (ii) Purchaser property; (iii) all materials of every kind (e.g., samples, software, models, prototypes, enzymes, proteins and other biological materials, including DNA); (iv) information of every kind (e.g., business plans, product roadmaps, personnel lists, customer lists, marketing and technical information, including the Specifications), provided to, obtained by, or otherwise observed by Supplier previously or in the future.
- “Specifications” means Purchaser’s specifications, drawings, or information, whether provided verbally, attached to the Purchase Order, typed or written on the Purchase Order, or referred to in the Purchase Order.
- “Supplier” means the person, firm, business, entity, corporation, company, organization, whether for profit or not for profit, undertaking to perform or deliver the Goods under the Purchase Order.
- The headings in these Conditions are for convenience only and shall not affect its construction or interpretation.
- In these Conditions:
- Variation
- These Conditions may only be varied with the written agreement of Purchaser.
- Purchaser reserves the right by reasonable notice to Supplier to vary the Goods detailed in the Purchase Order and any alteration to the Price or delivery date arising by reason of such modification shall be agreed between the parties and evidenced in writing.
- The Contract shall become binding and these Conditions shall be deemed to have been accepted by Supplier on the acceptance of the Purchase Order by Supplier (either verbally or in writing) or on delivery of the Goods, whichever is the earlier.
- Goods
- Supplier warrants and represents to Purchaser that:
- the Goods shall conform in all respects with any particulars or specification specified in the Purchase Order including any variations;
- the Goods shall conform in all respects with the requirements of any statutes, orders, regulations or bye-laws from time to time in force;
- the Goods shall be of satisfactory quality and free from defects in materials and workmanship; and
- the Goods shall be fit and sufficient for the purpose for which such goods are ordinarily used and for any particular purpose made known to Supplier by Purchaser and Purchaser relies on the skill and judgement of Supplier in the supply of the Goods and the execution of the Purchase Order;
- the provision of the Goods does not infringe any intellectual property right or other right of a third party and that it has obtained all necessary licences, permits or approvals required for the supply of the Goods;
- Purchaser will have the full benefit of any manufacturer’s warranty; and where the Supplier is not the manufacturer of the Goods, the Supplier assigns the benefit of such warranties to Purchaser or Purchaser’s nominee; and
- Supplier it has the right to sell the Goods and the Goods are free from any charge or encumbrance.
- Supplier warrants and represents to Purchaser that:
- Price
- Supplier shall not increase the Price unless it is validly accepted by Purchaser and agreed in writing before the execution of the Purchase Order.
- Unless expressly agreed otherwise between the parties in writing, the Price shall be inclusive of all delivery and insurance costs, VAT and any other applicable sales taxes, duties or levies.
- Unless otherwise agreed in writing by Purchaser, Supplier shall render a separate invoice in respect of each consignment of the Goods delivered under the Purchase Order. Purchaser undertakes to pay valid invoices within forty-five (45) days of receipt from the day of physical or electronic arrival at the nominated address of Purchaser. Invoices shall not be rendered by Supplier until completion of delivery of all the Goods which are the subject of the Purchase Order or of the consignment (as appropriate).
- Purchaser specifically reserves the right to withhold or deduct by way of set-off or otherwise from any monies due or to become due to Supplier any monies due to Purchaser from Supplier.
- Purchaser shall not be liable for any orders or amendments to orders other than those issued or confirmed on the official Purchase Order and shall not be responsible for the payment of the Price for Goods supplied in excess of those required by the Purchase Order.
- No payment of or on account of the Price shall constitute any admission by Purchaser as to proper performance by Supplier of its obligations under the Contract.
- Delivery
- The time of delivery shall be of the essence for the purposes of the Contract and failure to deliver by the Delivery Date shall enable Purchaser (at its option) to release itself from any obligation to accept and pay for the Goods and/or to cancel all or part of the Goods under the Purchase Order, in either case without prejudice to its other rights and remedies.
- Supplier’s failure to effect delivery on the Delivery Date specified shall entitle Purchaser to purchase substitute Goods and to hold Supplier accountable for any and all loss and/or additional costs incurred as a result of such failure.
- The Goods shall be delivered to the place named on, and in accordance with, the Purchase Order. Delivery shall be completed when the Goods have been unloaded at the point of delivery specified in the Purchase Order and delivery has been accepted by Purchaser or its authorised representative. Any access to premises and any labour and equipment that may be provided by Purchaser in connection with delivery shall be provided without acceptance by Purchaser of any liability whatsoever or howsoever arising.
- Where any access to the premises is necessary in connection with delivery or installation, Supplier and its sub-contractors shall at all times comply with the reasonable requirements of Purchaser’s Head of Security or other authorised representative.
- Unless otherwise stated in the Purchase Order, Supplier is responsible for obtaining and the cost of all the export and import licences for the Goods, and in the case of the Goods supplied from outside the country of residence of the Purchaser, Supplier shall ensure that accurate information is provided to Purchaser as to the country of origin and Supplier shall be liable for additional duties or taxes should the country of origin prove to be different to the one stated.
- Ownership and risk
- Ownership and risk in the Goods shall without prejudice to any of the rights or remedies of Purchaser (including Purchaser’s rights and remedies under Condition 8 below) shall pass to Purchaser on delivery.
- Damage in transit
- On despatch of any consignment of the Goods, Supplier shall send to Purchaser at the address for delivery of the Goods, an advice note specifying the means of transport, the place and date of despatch, the number of packages and their weight and volume.
- Supplier shall, free of charge and as quickly as possible, either repair or replace (as Purchaser shall elect in its sole discretion) such of the Goods as may either be damaged in transit or having been placed in transit fail to be delivered to Purchaser provided that: (i) in the case of damage to such Goods in transit Purchaser shall within thirty (30) days of delivery give notice to Supplier that the Goods have been damaged; and (ii) in the case of non-delivery Purchaser shall (provided that Purchaser has been advised of the despatch of the Goods) within ten (10) days of the notified date of delivery give notice to Supplier that the Goods have not been delivered.
- Inspection, rejection and guarantee
- Nothing contained in these Conditions shall in any way detract from Supplier’s obligations under common law or statute or any express warranty or condition contained in the Purchase Order.
- If the Goods: (i) do not conform with this Agreement; or (ii) on delivery are damaged, unfit for purpose or not of merchantable quality, Purchaser may by written notice to Supplier reject any of the Goods which fail to meet the requirements in the Contract. Such notice shall be given within a reasonable time after delivery to Purchaser of the relevant Goods. If Purchaser rejects any of the Goods pursuant to this Condition 2, Supplier shall at Purchaser’s sole option (without prejudice to its other rights and remedies) either: (i) repair the defective Goods as quickly as possible or (as Purchaser shall elect in its sole discretion) replace the defective Goods with Goods which comply in all respects with the requirements under the Contract; or (ii) refund to Purchaser the Price in respect of the defective Goods.
- Supplier shall guarantee the Goods for a period of twelve (12) months from delivery (subject to any alternative guarantee arrangements agreed in writing between Purchaser and Supplier). If Purchaser shall, within such guarantee period or within thirty (30) days thereafter, give notice in writing to Supplier of any defect in any of the Goods that have arisen during the guarantee period under proper and normal use, Supplier shall (without prejudice to any of Purchaser’s other rights and remedies) as quickly as possible remedy such defects (whether by repair or replacement as Purchaser shall elect in its sole discretion) without cost to Purchaser.
- Any Goods rejected or returned by Purchaser pursuant to this Condition 8 shall be returned to Supplier at Supplier’s risk and expense.
- Labelling and packaging
- The Goods shall be packed and marked in a proper manner and in accordance with Purchaser’s instructions 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 the weights, details of the contents shall be clearly marked on each container and all containers of hazardous goods (and all relating documents) shall bear prominent and adequate warnings.
- All packaging materials will be considered non-returnable and will be destroyed unless Supplier’s advice note states that such materials will be charged for unless returned. Purchaser accepts no liability in respect of the non-arrival at Supplier’s premises of empty packages returned by Purchaser.
- Intellectual property
- Except to the extent that the Goods are supplied in accordance with designs provided by Purchaser, it shall be a condition of the Purchase Order that none of the Goods will infringe any patent, trade mark, design right (whether registered or not), copyright or any other right in the nature of intellectual property of any third party and Supplier shall indemnify and keep indemnified Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which Purchaser may suffer or incur as a result of or in connection with any breach of this Condition 10.1.
- All materials, equipment, software, inventions, specifications, instructions, plans or any form of intellectual property right in any of the foregoing (“Intellectual Property“):
- furnished to or made available to Supplier by Purchaser pursuant to the Purchase Order are hereby assigned to and shall remain vested solely in Purchaser; and
- Supplier shall not (except to the extent necessary for the implementation of the Purchase Order) without prior written consent of Purchaser, use or disclose any such Intellectual Property or any information (whether or not relevant to the Contract) which Supplier may obtain pursuant to the Contract and in particular (but without prejudice to the generality of the foregoing) Supplier shall not refer to Purchaser or the Contract in any public statement without Purchaser’s prior written agreement.
- Health and safety
- Supplier represents and warrants to Purchaser that Supplier has satisfied itself that:
- all necessary tests and examinations have been made or will be made prior to delivery of the Goods to ensure that the Goods are designed, manufactured, supplied and installed so as to be safe and without risk to the health or safety of persons using the same; and
- that it has made available to Purchaser adequate information about the use for which the Goods have been designed and have been tested and about any conditions necessary to ensure that when put to use the Goods will be safe and without risk to health.
- In any event, Supplier will comply with the duties imposed on it by the Health & Safety at Work etc Act 1974 or any amendment thereto and of all other statutory provisions, rules and regulations so far as they are applicable. Supplier shall indemnify and keep indemnified Purchaser against any and all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which Purchaser may suffer or incur as a result of or in connection with any breach of this Condition 11.
- Supplier represents and warrants to Purchaser that Supplier has satisfied itself that:
- Compliance with applicable law and purchaser policies
- In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and legally binding codes from time to time in force and the Mandatory Policies.
- Insurance and indemnity
- Supplier shall take out and maintain with a reputable insurance company a policy or policies of insurance that are normal for contracts of this nature and covering all the matters which are the subject of indemnities under these Conditions.
- Supplier shall at the request of Purchaser produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium.
- Without prejudice to any rights or remedies of Purchaser (including Purchaser’s rights and remedies under Condition 8 above) Supplier shall indemnify and keep indemnified Purchaser against any and all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which Purchaser may suffer or incur as a result of or in connection with any damage to property or in respect of any injury (including death) to any person which may result directly or indirectly from any defect in the Goods or the negligence, acts or omissions of Supplier or any of its employees, agents or sub-contractors.
- Nothing in these Conditions or the Contract shall exclude or limit the liability of either party for death or personal injury caused by its negligence or for fraudulent misrepresentation.
- Confidentiality
- Supplier shall and shall procure that its staff shall keep secret and do not disclose any information of a confidential nature obtained by reason of the Contract except information which is in the public domain otherwise than as required to be by reason of a breach of this Condition 14 or disclosed by law.
- The provisions of this Condition 14 shall apply during the continuance of the Contract and after its termination howsoever arising without limitation in time.
- Data protection, security and indemnity
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This Condition 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- If the Supplier processes any personal data on the Purchaser’s behalf when performing its obligations under the Contract, Purchaser is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation and the Supplier will enter into the Purchaser’s standard data processing addendum.
- Supplier shall maintain policies and processes to keep up to date with and protect against current and emerging security threats and vulnerabilities, and ensure that corresponding controls are implemented to maintain the security of Purchaser information and assets against such threats and vulnerabilities. All references to the ‘security’ of Purchaser information and assets in this Condition 15 shall include the protection of the confidentiality, integrity and continued availability of such information and assets.
- Supplier’s system security configuration must be implemented in accordance with industry best practice security standards, and Supplier will complete any required risk assessments issued by Purchaser to Supplier from time to time regarding the security of its network and information systems and will update Purchaser immediately in the event of any changes to such information.
- Termination
- In the event of a material breach of the Contract by either party, the non-breaching party may terminate the Contract with immediate effect by notice in writing.
- Purchaser may terminate the Contract with immediate effect by notice in writing to Supplier if at any time:
- Supplier passes a resolution that it be wound-up or that an application be made for an administration order or Supplier applies to enter into a voluntary arrangement with its creditors;
- a receiver, liquidator, administrator, supervisor or administrative receiver be appointed in respect of Supplier’s property, assets or any part thereof;
- the court orders that Supplier be wound-up or a receiver of all or any part of Supplier’s assets be appointed;
- Supplier is unable to pay its debts;
- Supplier (being an individual or partnership) is declared or adjudicated bankrupt or enters into any arrangement or composition with its creditors.
- Nothing in this Condition 16 shall affect the coming into, or continuance in force of any provision of the Contract which is expressly or by implication intended to come into force or continue in force upon termination of the Contract.
- Assignment and sub-contracting
- Supplier shall not without the prior written consent of Purchaser assign or transfer the benefit or burden of the Contract.
- No sub-contracting by Supplier shall in any way relieve Supplier of any of its responsibilities under the Contract.
- Where Purchaser enters a sub-contract with a supplier or contractor for the purpose of performing the Contract, it shall cause a clause to be included in such sub-contract which requires payment to be made to Supplier or contractor within a specified period not exceeding thirty (30) days from receipt of a valid invoice as defined by the sub-contract requirement.
- Notices.
Any notices to be given under the Contract shall be delivered personally or sent by post to the Legal Department (in the case of Purchaser) or to the address set out in the Purchase Order (in the case of Supplier). Any such notice shall be deemed to be served, if delivered personally, at the time of delivery, if sent by post, 48 hours after posting or, if sent by facsimile transmission, twelve (12) hours after proper transmission. - Third party rights.
The Contract is not intended to create any rights of any kind whatsoever enforceable by any person who is not a party to the Contract. - Severabililty.
If any provision under this Contract is or becomes unenforceable, such provision shall not take effect and shall be deemed to be severed from the remainder of the Contract to the extent that the remainder of the Contract and the unaffected part of the provision shall continue to be fully enforceable. - Waiver.
No delay or omission by Purchaser in exercising any of its rights under the Contract shall constitute a waiver of that right and any partial exercise of any such right shall not prevent any future exercise of the right. - Relationship.
The Contract does not create an employment, partnership or agency relationship between the Supplier and Purchaser. The Supplier does not, and must not represent itself to have, any authority to bind Purchaser. - Law and jurisdiction.
The Contract and any dispute arising under or in any way connected with the subject matter of the Contract (whether of a contractual or tortious nature or otherwise) shall be governed by and interpreted in accordance with English Law and the parties submit to the jurisdiction of the English courts only except that Purchaser may seek injunctive relief outside such jurisdiction.
