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Terms and conditions for online ordering1. INTERPRETATION1.1 In these Conditions the following words and expressions shall have the following meanings, unless they are inconsistent with the context:
Buyer means any person, firm, company or other legal person who places an order with the Seller;
Conditions means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
Contract means any order by the Buyer whether oral or in writing for the supply of Goods which is accepted by the Seller;
Goods means all in vitro diagnostic kits, reagents, instruments and ancillary devices for which the Buyer places an order with the Seller; and
Seller means Axis-Shield Diagnostics Ltd. (registration no. 77359) having its registered office at the Technology Park, Luna Place, Dundee, DD2 1XA.
1.2 All references in these Conditions to a statute or statutory provision shall be construed as including references to that statute or statutory provision as from time to time amended, modified, consolidated or re-enacted.
1.3 Except where the context otherwise requires, words denoting the singular shall include the plural and vice versa. Words denoting any gender shall include all genders and words denoting persons shall include firms and corporations and vice versa.
1.4 The clause headings in these Conditions are for ease of reference only and shall not affect the construction or interpretation of the Contract.
2. CONDITIONS APPLICABLE2.1 These Conditions apply (unless the Seller otherwise agrees in writing) to all Contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may seek to incorporate into any purchase order, confirmation of order or similar document..
2.2 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
2.3 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable, unless accepted by the Seller in writing.
3 PRICES3.1 The price of the Goods shall be the price stipulated in the Seller’s published prices list current at the date of delivery of the Goods or the price specified within a separate quotation given by the Seller and addressed to the Buyer, prior to the Buyer placing the order.
3.2 All prices and charges quoted by the Seller are exclusive of VAT or other governmental charges, duties and packing, insurance and carriage charges which shall be borne by the Buyer. Any VAT (which shall be due at the rate ruling on the date of the VAT invoice) tax or other governmental charge upon the production, sale and/or shipment or otherwise of the Goods whether now imposed by any government or other authority or hereafter becoming effective.
4 TERMS OF PAYMENT4.1 Payment is due in Pounds Sterling thirty (30) days after the date of invoice unless otherwise agreed and accepted by the Seller in writing.
4.2 The Buyer shall make full payment of the invoice prices of the Goods without deduction or set off of any kind.
4.3 Interest shall accrue from day to day for payment of the price of the Goods at the rate of three (3) per cent per annum above the base rate of the Bank of Scotland in operation at the date upon which payment was due or such other rate as may be intimated in writing by the Seller to the Buyer from time to time and shall accrue at such rate after as well as before any decree judgement.
5 DELIVERY5.1 Unless otherwise agreed in writing, the place of delivery of the Goods shall be that stipulated on the Buyer’s order and accepted by the Seller and the Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Any dates given by the Seller for delivery are estimates only and the Seller does not accept any contractual obligations as to time or date of deliver. The Seller shall not be liable for any loss, damage or expense (including consequential loss, damage or expense) arising directly or indirectly from any delay or failure to deliver howsoever caused.
5.2 The Seller may deliver the Goods by separate instalments in accordance with any agreed delivery schedule. Each separate instalment shall be invoiced and paid for in accordance with these Conditions.
5.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and any failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole repudiated.
5.4 If the performance of a Contract shall be delayed due to circumstances or conditions beyond the control of the Seller the obligations of the Seller shall be suspended for as long as such circumstances prevail.
6 RETENTION OF TITLE – GREAT BRITAIN6.1 Notwithstanding any marks applied to the Goods or their packaging at the request of the Buyer, the Goods shall remain the sole and absolute property of the Seller as legal owner until such time as the Buyer shall have paid to the Seller the full invoice price for the Goods, and to the extent that it is legally enforceable, the full price (including any interest and charges) of any other goods the subject of any other contract with the Seller.
6.2 The Buyer shall store the Goods in such a manner that they are readily identifiable as the Seller’s Goods until all such monies are paid. In the event or failure by the Buyer to pay any part of the price of the Goods by the due date for payment, the Seller shall be entitled to enter upon any premises where the Goods are stored or where they are reasonably thought to be stored and repossess the Goods and the Buyer shall assist the Seller for this purpose.
6.3 If the Buyer becomes apparently insolvent, bankrupt or compounds with his or its creditors or has a liquidator, receiver, administrative receiver or administrator appointed or ceases or threatens to cease to carry on business or carries out or undergoes any analogous act or proceeding under any foreign law prior to property in any of the Goods passing to the Buyer, the price of the Goods shall become immediately due and payable and the Buyer’s right to re-sell or otherwise deal in the Goods shall automatically terminate and the Seller shall be entitled to repossess any of the Goods in respect of which title has not passed as aforesaid.
6.4 For the purpose of this clause 6, each sub-clause of this clause shall be construed and interpreted separately and if any such sub-clause or provision or part of a such sub-clause shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other such sub-clauses and/or provisions or parts of such sub-clauses shall remain in full force and effect as if the offending sub-clause or provision or part of the sub-clause had been omitted from these Conditions.
7 RESERVATION OF TITLE – OUTWITH GREAT BRITAIN7.1 Where any of the Goods are supplied to a Buyer outwith Great Britain the provisions of clause 6 above shall apply insofar as the same are recognised by the jurisdiction in question and enforceable under such jurisdiction, to the intent that the Seller, until it has received payment in full, shall retain maximum rights and powers in relation to the Goods as against the Buyer and any other party who has any dealings with the Goods.
8 RISK AND INSURANCE8.1 Notwithstanding that property in the Goods has not passed to the Buyer under clauses 6 and 7 above, the risk of loss or damage to the Goods shall pass to the Buyer on delivery.
8.2 In any case where the Buyer wishes the Seller to insure any specific consignment of Goods, the Buyer must advise the Seller in writing within a reasonable time prior to delivery quoting the full value to be insured. The premium for such insurance will be payable by the Buyer.
9 FITNESS FOR PUPOSE9.1 The Seller uses quality materials, and applies the highest production standards in the manufacture and processing of the Goods, however, no condition is made or implied nor is any warranty given or to be implied that the Goods will be suitable for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to the Seller. The Buyer agrees that apart from the express terms contained in these Conditions or in any quotation or other document expressly stipulated to form part of the Contract and to be outside the provisions of this sub-clause 9.1, it has not been induced to enter into the Contract by and it has not relied upon any pre-contractual statement, representation or opinion by the Seller relating to the Goods.
9.2 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or otherwise are excluded to the fullest extent permitted by law.
9.3 The Buyer’s attention is drawn to and the Buyer shall comply with all warnings, precautions and other instructions for the preparation, use or storage of the Goods detailed or referred to in any package inserts or other instruction booklets supplied to it by the Seller in connection with the Goods. The Buyer shall pass such package inserts or instruction booklets on to the purchasers or users of the Goods (including purchasers and users of other goods and equipment in which the Goods are incorporated or to which the Goods have been attached) together with all relevant safety regulations. The Seller shall have no liability whatsoever for any loss or damage arising directly or indirectly from any Goods in respect of which the Buyer has failed to comply with such package inserts, instruction booklets or safety regulations. The Buyer shall indemnify the Seller against any damages, losses, costs, claims or expenses which may be suffered or incurred by the Seller as a result of the Buyer’s failure to comply with its obligations under this sub-clause 9.3.
9.4 The Buyer shall ensure that all necessary licenses, consents and certificates have been obtained in relation to the use to which the Goods are put and that said use complies with all relevant statutes and regulations.
10 QUALITY OF GOODS10.1 The Buyer shall be deemed to have accepted the Goods delivered within the United Kingdom as being in accordance with the Contract and free from all defects which would be apparent on a reasonable examination unless, within seven days after receipt of the Goods, the Buyer shall have given to the Seller a written notice specifying the matters complained of and thereafter afforded the Seller a reasonable opportunity to inspect the Goods before they were used or processed.
10.2 Where the Goods are to be exported, the Buyer or its representative may inspect the same at the Seller’s works before despatch and the Seller shall not be liable for any claim made after the date of the shipment.
10.3 The Seller shall not be liable for defects which would not be apparent on a reasonable examination unless, within the period of the shelf life of the Goods, if specified, or otherwise within six months after the receipt of the Goods and forthwith upon the discovery of such defect, the Buyer shall have given to the Seller a written notice specifying the matters complained or and a written notice specifying the matter complained of and thereafter afforded the Seller a reasonable opportunity of inspecting the Goods in their alleged defective state.
10.4 The Seller shall not be liable in any way for any defects in the Goods not of its own manufacture or processing.
10.5 Provided that the Buyer has complied with the requirements as to notice in terms of this clause 10, if the Goods or any part of the Goods are found by the Seller to be defective or otherwise not in accordance with the Contract then, if the Seller and the Buyer do not agree that the Buyer should accept the Goods at an agreed value, the Seller undertakes to accept a return of the relevant Goods and to remedy any defects or replace the Goods as soon as may be reasonably practicable.
11 LIABILITY11.1 The liability of the Seller to the Buyer in respect of defects in the Goods, for breach of the Contract and for negligence in relation to the performance of the Contract shall be limited to the obligations specified in clauses 9 and 10 and the Seller shall have no other liability whatsoever to the Buyer. Notwithstanding the terms of this sub-clause, nothing contained in these Conditions shall have the effect of excluding or restricting the Seller’s liability for death or personal injury caused by the negligence of the Seller.
11.2 The Buyer shall not be entitled to withhold payment of any amount payable to the Seller under the Contract because of any disputed claim of the Buyer in respect of faulty Goods or any other alleged breach of contract, nor shall the Buyer be entitled to set off any amount payable against any monies which are not then presently payable by the Seller for which the Seller disputes liability.
11.3 The Buyer waives any right which it may otherwise have to raise an action against the Seller or any of its officers or employees based on innocent or negligent misrepresentation in respect of any pre-contractual statement, representation or opinion given by the Seller.
12 INTELLECTUAL PROPERTY12.1 The Buyer shall not acquire any right, title or interest in or to any intellectual property rights in relation to the Goods or save as provided in these Conditions any other propriety rights belonging to the Seller.
12.2 The Seller gives no warranty to the Buyer that the sale or use of the Goods will not infringe the intellectual property rights of any third party and no right or cause of action shall be open to the Buyer against the Seller in respect thereof. Without prejudice to the foregoing generality, under no circumstances shall the Seller be liable to indemnify the Buyer with regard to any loss, cost, expense, injury or damage it may suffer as the result of the infringement of any third party intellectual property rights.
13 TERMINATION13.1 The Seller shall be entitled without prejudice to its other rights and remedies either to terminate the Contract wholly or in part or to suspend any further deliveries under the Contract or any other contract with the Buyer without incurring any liability to the Buyer in any of the following events:
(i) if any monies due and payable by the Buyer to the Seller are unpaid on the due date for payment; or
(ii) if the Buyer has failed to provide any pre-payment, bill of exchange or security required by the Contract, provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular Contract in respect of which the Buyer shall have so failed; or
(iii) if the Buyer has failed to take delivery of any Goods under any contract between itself and the Seller otherwise than in accordance with the Buyer’s contractual rights; or
(iv) if the Buyer becomes insolvent, bankrupt or compounds with his or its creditors or has a liquidator, receiver, administrative receiver or administrator appointed or ceases or threatens to cease to carry on business or carries out or undergoes any analogous act or proceeding under foreign law; or
(v) if, to the cost or detriment of the Seller, there is a change in the regulations or statutory requirements affecting the sale of the Goods within the country in which the Buyer is situated or intends to sell the Goods.
13.2 The Seller shall be entitled to exercise its aforesaid rights of termination or suspension by giving notice in writing to the Buyer at any time during the continuance of the event of default giving rise to such rights and in the event of any suspension the Seller shall be entitled as a condition of resuming delivery under any contract to require pre-payment of such security as it may require for the payment of the price of any further deliver.
14 NOTICES14.1 Any notice required or permitted to be given by either party to the other under these Conditions may be delivered personally or sent by first class recorded delivery post or air mail or transmitted by fax or telex, in each case to the registered office or business address of the party to whom the notice is addressed and any such notice shall be deemed to have been validly served or sent by post on the expiry of 48 hours from the time of posting and if delivered personally or transmitted by fax or telex at the time of delivery or transmission provided that any such fax or telex is confirmed by letter sent within 24 hours of transmission.
15 GENERAL15.1 The Buyer shall not be entitled to assign the Contract or any benefit or obligation under the Contract. The Seller shall be entitled to assign or sub-contract the performance of any part of the Contract but shall remain primarily responsible to the Buyer.
15.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be construed as a waiver of any subsequent breach of the same or any other provision of the Contract.
15.3 The Contract shall be governed by and interpreted according to the laws of Scotland and the Buyer prorogates the non-exclusive jurisdiction of the Scottish Courts.
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