1 Interpretation: In these Terms of Sale (“Terms”): (i) “we”, “us”, and “our” means MicroGEM International PLC; (ii) “you” and “your” means the person, company or other legal entity that orders or buys products from us; (iii) “products” means the products and services we supply to you; (iv) “including” and similar words do not imply any limitation; (v) notification in writing includes notification by email or notification on the www.zygem.com website.
2 Application: These Terms apply to the supply of products to you and, unless otherwise agreed in writing by us, prevail over any terms in any purchase order or other document or form submitted by you. These Terms, any quotation issued to you by us, and any specific terms of a purchase order or other document that are either consistent with these Terms or expressly accepted by us in writing, constitute the entire contract between us (“Contract”), and supersede all prior agreements and understandings between us, whether written or oral, relating to the subject matter in question. In the event of any conflict, a quotation from us takes precedence over these Terms, and a written contract signed by both of us takes precedence over either.
3 Acceptance of Orders: Orders received by us are not valid until accepted by us in writing. Orders are subject to our then published minimum quantity or other requirements. Orders, once accepted by us, may only be cancelled with our prior written approval (which may be given or withheld in our sole discretion) and you will pay us any amounts invoiced by us for work done, and materials used, other costs relating to that cancellation.
4 Delivery: Where a delivery date is agreed or specified for any products, that date is an ex-works date and is an estimate only. We will use reasonable endeavors to deliver the products by any agreed date, or where no delivery date is agreed, in accordance with our then published lead times (if any). Any failure to deliver or defective delivery by us will not entitle you to cancel the Contract. Unless specified differently in writing, all sales are FOB (INCOTERMS 2000) at our nominated despatch point. We reserve the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice.
5 Risk and Ownership: The products will be at your risk from the time of despatch from our premises (i.e. during transit). It is your responsibility to arrange insurance against any loss or damage to the products during transit. Title to the products will remain with us until all amounts owing to us for those products are paid in full. Until title to any products passes you will hold those products as our bailee and hold any cash proceeds from the sale of those products on trust for us in a separate account.
6 Technical Assistance: Unless otherwise agreed, all technical assistance and information we provide to you regarding the products will be provided without charge, and you assume sole responsibility for results obtained in reliance on such assistance and information. We make no warranty regarding such technical assistance or information.
7 Price and Payments: Unless otherwise specified in writing (including in a written quotation we provide to you or in a written contract between the parties): products will be billed at the price in effect at the time of order; such prices will be subject to change from time to time without notice; we reserve the right to require payment in advance or with order; where we agree to credit terms, then payment is due within 14 days of the date of ex-works despatch; unless otherwise agreed payment will be made in the currency specified in any price list we publish, without deduction, withhold or set-off. All payments must be made by you and will not be subject to, or conditional on, any payments from a third party or any other matter. If payment is not received by us for any reason, we may, at our option and without prejudice to our other lawful remedies: defer delivery; cancel or suspend any outstanding order, any credit terms or the Contract; and/or, charge interest on the overdue amount at 3% above the overdraft lending rate used by our bankers.
8 Taxes and Other Charges: Any use tax, sales tax, excise tax, duty, inspection or testing fee, or any other tax, fee or charge imposed by any governmental authority, on or measured by the arrangements or payments between us, will be paid by you in addition to the prices quoted or invoiced. If we are required to pay any such tax, fee or charge, you will reimburse us for the amount we have paid or provide us at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
9 Warranty: ￼We warrant to you, our direct customer, that our products will conform substantially to the description of such products in our documentation relating to the products. This warranty does not apply unless you notify us of a discrepancy in the products within 10 days of your receipt of such products or if we determine, in our sole discretion, that you have altered or misused the products or have failed to use, handle or store them in accordance with our instructions. All other warranties in relation to the products, whether express or implied (including any implied warranty of merchantability or fitness for any particular purpose), are excluded.
Our sole and exclusive liability and your exclusive remedy with respect to products proved to our satisfaction to be in breach of our warranty will be the replacement of such products free of charge, upon the return of such products to our premises in accordance with our instructions, although in our sole discretion we may provide a credit or refund the invoiced value of the products. IN NO EVENT WILL WE BE LIABLE (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR ANY LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT), EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
10 Authorized Uses and Handling etc: Unless otherwise agreed in writing by us, the purchase of products only conveys to you the non- transferable right for you only to use the quantity of products purchased in compliance with the documentation accompanying or relating to the products (including the applicable limited use license, and the protocols relating to the products). You warrant to us that you will properly test, use, and, to the extent expressly authorized by us, market and sell any products purchased from us in accordance with the practices of a reasonable person who is suitably qualified and experienced in handling material like the products, and in compliance with all ￼applicable national, state, provincial, and local laws and regulations (including, if you are located in the United States of America, the Federal Food, Drug and Cosmetic Act 1938 and the Federal Toxic Substances Control Act 1976).
Unless otherwise expressly specified in the applicable limited use license or other documentation accompanying or relating to the products or agreed in writing by us, the products are intended for in vitro diagnostic or in vitro research and development purposes only and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes, ex vivo or in vivo therapeutic purposes, in foods, drugs, devices or cosmetics of any kind, or for consumption by or use in connection with or administration or application to humans or animals. You acknowledge that the products have not been tested by or for us for safety or efficacy, unless expressly stated in the documentation accompanying the products.
11 Indemnity: You will indemnify and hold us harmless against all losses, damages and expenses (including legal fees) that we may incur as a result of any claim (whether in contract, tort, including negligence, or otherwise) by you or your officers, agents, employees or customers, whether direct or indirect, in connection with the use or resale of any products, or by reason of your breach of or failure to perform any of your obligations under the Contract, except to the extent caused by a breach by us of the express warranty in paragraph 9.
12 General: If any part of these Terms is held to be illegal, void or unenforceable, the remaining parts of the Terms will remain in full force. The Terms are governed by and will be construed in accordance with the laws of United Kingdom and the parties submit to the non-exclusive jurisdiction of United Kingdom courts. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from, and will not apply to, these Terms. If we fail to exercise any right or remedy available to us, this will not prejudice our right to later exercise that or any other right or remedy.