Oxford Gene Technology Inc.
Terms and Conditions for Sale of Products
These Conditions apply to and govern all sales of Products by Oxford Gene Technology Inc. to the exclusion of all other terms and conditions except any special terms and conditions agreed in writing by OGT.
In these Conditions the following words have the following meanings:
means these terms and conditions;
an agreement for the purchase of the Products by the Customer from OGT, including a written quotation of OGT which is accepted in writing by the Customer, or any written order of the Customer which is accepted in writing by OGT;
means the person, company or organisation so described in Contract;
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;
products manufactured or supplied by OGT as specified in the applicable Contract;
means Oxford Gene Technology, Inc.
means Oxford Gene Technology (IP) Limited, Oxford Gene Technology Limited, Oxford Gene Technology (Operations) Limited and any other subsidiary for the time being of Oxford Gene Technology (IP) Limited;
2. Basis of the sale
2.1 OGT will sell and the Customer will purchase the Products in accordance with any written quotation of OGT which is accepted in writing by the Customer, or any written order of the Customer which is accepted in writing by OGT.
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 OGT 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 OGT shall be subject to correction without any liability on the part of OGT.
3. Intended use of the Products
The Products are intended for research use only unless specially stated as suitable for diagnostic testing. The Products labelled as research use only are not suitable for diagnostic or drug testing and no products are suitable for administration to humans.
4. Quotations, price and orders
4.1 In the event that a written quotation or offer for the Products is issued by OGT, such quotation or offer may be altered to take account of any change taking place between the date of quotation or offer and OGT’s written acceptance of the Customer’s order and in any event the quotation or offer shall expire 30 days after the date of its issue unless otherwise agreed in writing by OGT.
4.2 No order, submitted by the Customer, will be deemed to be accepted by OGT unless and until the Products are shipped by OGT to the Customer.
4.3 The price of Products will be the price in force at the time of shipment and OGT’s price list does not constitute an offer to sell at the prices set out in it.
4.4 All prices are exclusive of sales tax 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 US Federal and State 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.
4.5 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.
5.1 Unless otherwise agreed in writing payment of all invoices will be made by the Customer to OGT in full in US Dollars as invoiced, no later than thirty (30) days from the date of invoice.
5.2 In the event of late payment by the Customer OGT will be entitled, without limiting any other rights and remedies it may have:
5.2.1 suspend deliveries and/or cancel any of its outstanding obligations under the Contract;
5.2.2 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
5.2.3 to charge interest on any outstanding amount accruing from time to time at the rate of 8% per annum above the Federal Funds Rate from the due date until the outstanding amount is paid in full.
5.3 The Customer shall have no right to set off any amounts owing to it by OGT against unpaid invoices due to OGT.
5.4 OGT 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 OGT by the Customer within the period referred to in condition 5.1.
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, 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 OGT or its agent or carrier and warrants to OGT 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 OGT reserves the right to alter them notifying the Customer as soon as is reasonably practicable. OGT 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 OGT the Customer:
6.4.1 is not ready to receive the Products on the day intended, or
6.4.2 fails to give OGT adequate instructions, or
6.4.3 fails to collect the Products intended for collection, or
6.4.4 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 OGT by its neglect, refusal or inability to take delivery of the Products and also for such costs and expenses as OGT may incur in storing the Products and, if applicable, re-delivering the same. In addition, OGT 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 OGT 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 OGT 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 OGT (including any of the Products supplied without charge as part of any sales offer or incentive) shall remain the property of OGT until OGT has received in cash or cleared funds payment in full of all monies owing by the Customer to OGT in respect of the Products under the Contract and until such time, the Customer will hold the Products as fiduciary agent and bailee for OGT and keep them insured on OGT's behalf for their full price against all risks with an insurer that is reasonably acceptable to OGT.
7.3 Not withstanding that property in the Products has not passed to the Customer, OGT 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 OGT 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 OGT may have, OGT 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 OGT's Products are warranted to meet any OGT product specifications in effect at the time of shipment. Notice of non-conforming or defective Products must be made to OGT within 30 days of receipt of the Products subject to condition 8.3. This product warranty limits OGT’s liability to the replacement of the product only. OGT will not be liable under the warranty for any damage or loss arising from wear and tear, willful 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 The Customer warrants 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.
8.3 The Customer will ensure that the specification of the Products ordered is suitable and safe for the intended use or environment of use.
8.4 The Customer warrants that it will handle the Products in a suitable and safe manner, in compliance with all applicable law and will comply with any instructions supplied to it by OGT. 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.
8.5 Where OGT experiences technical difficulties in the production of non-standard or custom made Products it may cancel the order for the Products without being liable to the Customer in any way.
8.6 Where the Customer supplies designs, drawings and specifications to OGT to enable it to manufacture non-standard or custom made Products the Customer warrants that such manufacture will not infringe the intellectual property of any third party.
8.7 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 OGT 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 OGT under the Contract for the purposes of developing, manufacturing or stockpiling conventional weapons, nuclear weapons, chemical weapons, biological weapons or weapons delivery vehicles.
9.1 Customer agrees to indemnify, defend and save OGT, its affiliates and its and their officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) to the extent arising from or in connection with (i) the negligence or willful misconduct of Customer, its agents, employees, representatives or contractors; (ii) use of the Products (except to the extent such claims result from the negligence or willful misconduct of OGT); or (iii) breach of these Conditions.
OGT agrees to indemnify, defend and save Customer, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees) for injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of OGT, its employees, agents or representatives or contractors.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF OGT UNDER THESE CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF OGT FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH WILL BE AS PROVIDED UNDER SECTION 8.1 ABOVE)) WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE PAID BY CUSTOMER TO OGT WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL OGT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE, USE OR PERFORMANCE OF ANY PRODUCTS (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, ANTICIPATED OR OTHERWISE), REGARDLESS OF WHETHER OGT (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.
10. Force Majeure
10.1 OGT shall not be liable for any failure to fulfill the Contract or any term or condition of the Contract if fulfillment 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 (“a Force Majeure Event”).
10.2 OGT will promptly notify the Customer if a Force Majeure Event arises and during the period in which OGT is prevented from performing the Contract the Customer will be entitled after giving OGT written notice of its intention to do so to purchase products elsewhere at its own cost and risk and OGT shall not be obliged to make up deficiencies which arise as a result.
10.3 If a Force Majeure Event exceeds one month OGT may cancel the contract without liability.
11. Intellectual Property Rights
11.1 All Intellectual Property Rights in the oligonucleotide design sequences used in microarrays included in the Products are the property of OGT and OGT Affiliates.
11.2 The Customer may publish only fifty (50) probe-sequences in any single publication provided that any such publication includes the following wording:
“Any publication or public disclosure of the oligonucleotide sequences used in products from Oxford Gene Technology, Inc. may only be reproduced or manufactured by Oxford Gene Technology (Operation) Limited, and should be referenced using the product code or the service identification number supplied by OGT.”
11.3 Nothing in this Agreement shall be construed as granting to the Customer any license under any Intellectual Property Rights of OGT except as set out in this clause 11 and as required by the Customer in order to use the Products for the intended use set out in condition 3.
12.1 The Customer undertakes not to use any trade marks or trade names applied by OGT to the Products nor to do or permit anything whereby the goodwill and reputation of such trade marks is prejudiced or damaged.
12.2 OGT may perform any of its obligations or exercise any of its rights under the Contract by itself or through an Affiliate, provided that any act or omission of any such Affiliate shall be deemed to be the act or omission of OGT.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
12.4 Any notice permitted or required under this Agreement 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.
13. Governing Law and Jurisdiction
The rights and obligations of the parties hereunder will be governed by and construed in accordance with the laws of the State of New York, without reference to its choice of law provisions. In the event of any legal proceeding between the OGT and Customer relating to these Conditions, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under these Conditions must be brought within one (1) year from the date that the cause of action arose. The Customer and OGT expressly reject any application to these Conditions of (a) the United Nations Convention on Contracts for the International Sale of Goods, and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980.