CONDITIONS OF SUPPLY OF GOODS OR SERVICES (“the Conditions”)
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 9.
In these Conditions:
“Business Day” means any day other than a Saturday, Sunday or public holiday in the United Kingdom
“Company” means Innovis Limited and any subsidiaries.
“Confidential Information”means information in any form (including, without limitation, trade secrets, models, software, computer outputs, personal data relating to customers or potential customers) whether written or oral, of a business, financial or technical nature which is marked or otherwise indicated as being or is, or ought reasonably to be, known to be confidential and which is disclosed by one party (the "Disclosing party") or any Affiliate or Supplier Group (as the case may be) to the other party (the "Receiving party");
“Contract” means this agreement
“Customer” means the party with whom the Company contracts;
“Due Date” means the date 28 days from the date of the invoice;
“Embryos” means frozen Embryos stored by the Company in straws on the basis that each straw typically contains two/four embryos of a similar developmental stage from the same flush or in-vitro production (IVP) process.
“Force Majeure” means an event which affects the performance by a party of its obligations under this Agreement and arises directly from an act of God, act of local government or government, war, fire, epidemic, flood, earthquake or storm, acts of terrorism, explosion, civil commotion (save that industrial action taken by the employees, of the party claiming that they have suffered such an event or any other circumstance within the reasonable control of such party shall not be considered to be a force majeure event);
“Goods” means all or any of the goods works and/or materials (including Semen and Embryos) to be supplied by the Company;
“Insolvency Event” means any one or more of a notice being issued to propose a resolution for winding up or dissolution, or such a resolution being passed; a petition for winding up or an administration or bankruptcy order being presented, or such an order being made; any steps being taken with a view to a voluntary arrangement or other assignment, composition or arrangement with all or any creditors or any moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness; suspension of payments to all or any creditors and/or ceasing business; an encumbrance taking possession of all or any assets of a party; an administrator or receiver being appointed over a party or all or any of its assets; any action anywhere similar or analogous to any of the foregoing; the other party having reasonable grounds for believing that any of the foregoing is imminent. For the avoidance of doubt if any of the foregoing occur in relation to a partner in any of the parties hereto it shall be deemed to occur in relation to that party;
“Semen” means frozen Semen stored by the Company in straws or pellets on the basis that each straw/pellet typically contains one/two dose(s) respectively;
“Services” means any services to be performed by the Company, including giving advice;
2. Basis of contract
2.1 The terms and conditions of this Agreement shall apply to the provision of all goods and Services by the Company to the Customer pursuant to this Agreement. No conditions of the Supplier or any other agreement with the Company which deviates from this Agreement shall be effective unless expressly stated otherwise in this Agreement or otherwise agreed in writing by an authorised representative of the parties
2.2 Each order placed by the Customer shall be deemed to be an offer by the Customer to purchase the Goods or Services subject to these Conditions. The description of the Goods shall be as set out in the Company’s quotation or acceptance of order.
2.3 No Contract shall come into existence until the Company issues a written acceptance of the Customer’s order or (if earlier) the Company delivers the Goods or Services to the Customer.
2.4 Unless otherwise agreed by the Company all orders for Goods and/or Services must be placed using the Company’s order form(s) as amended by the Company from time to time.
3. Information, Samples and Materials
3.1 The Customer shall be responsible to the Company for ensuring the accuracy and sufficiency of its order.
3.2 The Customer shall also provide full and accurate details about the composition of samples or other material it supplies to the Company and shall give the Company prior notice of any hazards in its use which is known or suspected by the Customer.
3.3 Any quotation provided by the Company is on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date. The Company reserves the right to withdraw a quotation any time prior to receiving acceptance.
3.4 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They will not form part of the Contract.
4.1 Any time quoted by the Company for delivery of all or any of the Goods and/or performance of all or any of the Services is an estimate only and time shall not be of the essence.
4.2 The Company reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date. If a date has been determined by the Company for the delivery of Services the Company shall, subject to Clauses 4.1 and 14.2, use its reasonable endeavours to deliver the Services to the Customer on the agreed date.
4.3 In the absence of agreement to the contrary delivery of the Goods shall be made to the Customer’s address specified by the Customer to the Company at the time of accepting the order at the cost of the Customer. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery by the Company
4.4 The Company reserves the right to deliver by instalments and each delivery shall constitute a separate contract to which these Conditions shall apply. Failure by the Company to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.5 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions after notification by the Company that the Goods are ready the Company may (without prejudice to its other rights and remedies);
4.5.1 store the Goods (on its own premises) and charge the Customer for its reasonable costs (including without limitation VAT costs of storage, carriage and insurance); and/or
4.5.2 sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.
4.6 Semen and / or Embryo Delivery
4.6.1 As regards Goods and Semen and/or Embryos, notification of non-delivery or short delivery (measured by the number of straws/pellets) or damage in transit (measured only where Semen and/or Embryos cannot be used) must be made in writing to the Company within three Business Days of the receipt of Semen and/or Embryos and, in the case of damage in transit, such notice must be accompanied with evidence of such damage;
4.6.2 If the Company delivers to the Customer a quantity of Goods of up to 30% more or less than the quantity accepted by the Company the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate. The Company shall at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or replace any such non-delivery short delivery or short delivery notified as aforesaid and save as provided in this Condition 4.6.3 shall not be liable for any such non-delivery or short delivery nor for any loss, financial or otherwise resulting directly or indirectly therefrom.
4.7 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within three Business Days of the date when the Goods would in the ordinary course of events have been received. Any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of delivery or of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
4.8 The Customer agrees at its risk to return all shipping flasks to the Company within 5 Business Days following insemination unless otherwise agreed in writing. If the Customer fails to do so or if the shipping flasks are not returned in a condition that is satisfactory to the Company, the Company reserves the right to charge the Customer for the replacement cost of such shipping flasks.
5.1 Save as provided in Clause 5.2 in respect of Services, following acceptance by the Company of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of a director of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit) damages, costs expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with the cancellation.
5.2 If the Customer cancels the Services within one month prior to the agreed start date for such Services the Customer shall pay the Company a cancellation fee as follows:
Time before agreed start date of the Services
Percentage of estimated contract price
Up to 7 days
The Customer shall be invoiced for the cancellation fee upon notice of cancellation of Services whether that notice be given verbally or in writing.
6.1 The prevailing price shall be the price set out in the Company’s acknowledgement of order unless otherwise agreed in writing by the Company
6.2 The Company shall invoice the Customer for Goods and/or Services.
6.3 Invoices shall be payable on the Due Date.Without prejudice to any rights of the Company may have it may charge interest on a daily basis (both before and after judgement) on the amount unpaid at the rate of 5% above the base rate of HSBC Bank plc from the Due Date until the invoice is paid in full.
6.4 Unless otherwise expressly stated in writing all prices are exclusive of VAT which shall be charged to the Customer where appropriate at the rate prevailing at the relevant tax point.
6.5 Where payment is agreed to be made by instalments, any delay or default by the Customer in making payment in respect of any one instalment shall render all the remaining instalments due forthwith, and interest will be charged in accordance with condition 7.3 with immediate effect until the date of actual payment.
6.6 No payment shall be deemed to have been received until the Company has received cleared funds.
6.7 If the semen and/or embryo storage fee is outstanding after 90 days after the date due for payment, the Company reserves the right to sell the semen and/or embryos to cover the cost of such storage. There will be a ten percent commission on the sale to cover the companies’ costs. If the semen and / or embryos are not saleable they may be destroyed.
7. Risk and title
7.1 Risk in the Goods shall pass to the Customer immediately an order is delivered by the Company and at such time the Customer shall be responsible for insuring such Goods.
7.2 Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in the Company until the Company has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the Company to the Customer under any other contract whatsoever.
7.3 Until property in and title to the Goods passes to the Customer
7.3.1 the Customer shall keep the Goods properly stored and protected; and separate and identifiable from his own goods
7.3.2 the Company shall be entitled at any time forthwith to revoke the Customer’s power to deal with the Goods; and it shall automatically cease if the Customer shall commit or be subject to any Insolvency Event; and;
7.3.3 the Customer shall not make any modification to the Goods or its packaging or open the packaging or alter, remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.
7.4 Upon termination of the Customer’s power to deal with the Goods, the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorised without the need for consent of any third party to enter upon any premises of the Customer for the purpose of removing the Goods.
7.5 If any of the foregoing provisions of this Condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions.
8. Termination and suspension
Without prejudice to any rights and remedies available to it, the Company shall be entitled, forthwith on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to the Company shall become immediately due and payable) if:-
8.1 any sum owing to the Company from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event the Company shall have a general lien for any such sum on all and any property of the Customer in its possession);
8.2 the Customer shall commit or be subject to any Insolvency Event;
8.3 the Customer shall commit any breach of any contract with the Company.
In the event of a suspension of performance the Company shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
9. Limitation of Liability
9.1 The Company shall use reasonable endeavours to ensure the safekeeping of all animals under its care and provide reproductive services to the best of its technical ability save that the Company cannot and does not guarantee the conception rates which may result from the Services provided. The Company shall not be held responsible for any loss, injury or death of any animal under its care, or for any loss of earnings whether direct or consequential.
9.2 The Company shall be under no liability in respect of:
9.2.1 the accuracy of the pedigree or technical information of the Semen and/or Embryos. This information has been supplied to the Company by the relevant suppliers and whilst the Company has made reasonable efforts to ensure that such information is accurate, the Company does not and cannot guarantee that such information is correct;
9.2.2 the actual or supposed value of the generic merit of Semen and/or Embryos in store at one of the Company’s centres or in transit from one of the Company’s centres;
9.2.3 any defects in Goods arising from the acts of the Customer or its agents including without limitation wilful damage, negligence, lack of proper care of storage, failure to follow the Company’s instructions (whether oral or in writing), misuse of Goods without the Company’s approval;
All warranties, conditions and other terms implied by statute of common law are to the fullest extent permitted by law, excluded from the Contract, provided that nothing in this Condition shall operate so as:-
9.2.4 to exclude the Company’s liability in respect of death or personal injury caused by the negligence of the Company its servants or agents;
9.2.5 to exclude liability for fraudulent misrepresentation.
9.3 The Companies liability under this contract shall be limited to the annual fees paid under this contract for that particular service. For the avoidance of doubt Semen and/or Embryo are stored at the Customers risk and insurance of the Semen and/or Embryos are the Customers responsibility. The Companies liability in relation to Semen and/or Embryo storage is limited to one year’s storage fee.
9.4 The Company shall not be liable to the Customer for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its servants or agents.
10. Intellectual property rights
10.1 The Company shall be entitled to the copyright in any reports produced, and to the trade marks, patents and other existing or future intellectual property rights in or arising from all our work under the Contract and from discoveries or inventions made during the course of the Contract. For the avoidance of doubt, any intellectual property rights vested in the Company shall mean the Company, or if different, any other company or body forming part of the Company’s group which has the right to such intellectual property rights. The Customer shall not at any time publish or use in any publication any report or statement issued by the Company nor any extract therefrom without the written permission of the Company.
11. Export terms
11.1 Any term or expression which is defined in the provisions of Incoterms 2000 (or on the Customer and the Company and any subsequent revision thereof) shall import the respective obligations of buyer and seller into this Contract, but in the event of conflict this Contract and any subsequent revision thereof shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Company and the Customer) apply not withstanding any other provision of this Contract.
11.3 Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered Ex Works from the Company’s premises.
11.4 The Customer shall be responsible for arranging for inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.5 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in England acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Company at such branch of HSBC Bank plc in England as may be specified in the bill of exchange.
12. Contracts for Services
If the Contract is for or to include Services to be performed by the Company the following provisions shall apply:-
12.1 The Company shall only be obliged to carry out Services during normal working hours (8.30 – 17.00hrs) on a Business Day and shall be entitled to charge for any overtime worked upon request by the Customer.
12.2 Where Services are performed at the premises of the Customer, the Customer shall provide free of charge:-
12.2.1 Proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;
12.2.2 Free and safe access to the site and place where the Services are to be performed;
12.2.3 All facilities and services necessary to enable such Services to be performed safely and expeditiously;
12.3 The Customer shall pay the Company any expenses incurred by the Company by reason of a breach by the Customer of any of its obligations in this Condition without prejudice to the Company’s right to recover any loss thereby occasioned.
12.4 Goods and Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever the Company shall be entitled to charge for such Goods and/or Services. The Customer shall for the benefit of itself and the Company insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruction. The Customer shall produce the policy to the Company upon request together with the latest premium receipts and in default of effecting the same the Company shall be entitled to do so and add the cost of such insurance to the Contract price.
13.1 It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Customer.
13.2 Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract caused by any factor beyond its reasonable control.
13.3 The rights and remedies of the Customer in respect of the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company to the Customer nor by any failure of or delay by the Company in ascertaining or exercising any such rights or remedies. Any release, waiver or compromise or any other arrangement of any kind (a release) by the Company shall not affect its rights and remedies as regards any other party nor its rights and remedies against the Customer in whose favour it is granted or made except to the extent of the express terms of the release and no such release shall have effect unless granted or made in writing. The rights and remedies in this Contract are cumulative and not exclusive of any rights and/or remedies provided by law.
13.4 The Contract is personal to the Customer. The Customer shall not assign, transfer or charge its rights and responsibilities under this Contract or any of them without the prior written consent of the Company.
13.5 The provisions of the Contract are severable and distinct from one another, and, if at any time any of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions shall not in any way be affected or impaired.
13.6 The headings in this Contract are for convenience only and do not affect the interpretation of the Contract.
13.7 The Contract shall not constitute and shall not be deemed to constitute a partnership between the Company and the Customer and the Customer shall not act nor purport to act as agent for the Company but solely as an independent contractor.
13.8 All notices under this Contract shall be in writing and may be served by post or facsimile transmission addressed to the other party at the address given in this Contract or at such other address as a party shall from time to time by notice in writing give to the other party for the purpose of service of notices under this Contract and every such notice shall be deemed to have been served by post at the expiration of 2 days after despatch of the same or if sent by facsimile transmission at ten hours local time on the next normal Business Day of the recipient following despatch and in proving service it shall be sufficient to show in the case of a letter that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and Bank Holidays shall not in any event be treated as days on which service is effected, and service shall be deemed to take place on the next normal Business Day of the recipient.
13.9 The Contract shall be governed in accordance with the laws of England and Wales.
All disputes arising under this Contract shall be subject to the exclusive jurisdiction of the English and Welsh courts and the parties waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
13.10 Entire Agreement
This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter;
14. Third Party Rights
For the avoidance of doubt nothing in these Conditions shall confer on any third party any benefit or the right to enforce any provision of these Conditions or by virtue of the Contracts (Rights of Third Parties) Act 1999.
15.1 Each party shall keep and procure to be kept secret and confidential Confidential Information belonging to the other party disclosed as a result of the relationship of the parties under this Agreement and shall not use nor disclose the same save as envisaged in this Agreement. Where disclosure is made to any employee, consultant or agent, it shall be done subject to obligations equivalent to those set out in this clause 16 and each party shall be responsible to the other in respect of any disclosure or use of such secret or confidential information by a person to whom disclosure is made.
15.2 The obligations of confidentiality in this clause 16 shall not extend to any matter which is in or becomes part of the public domain otherwise than by reason of a breach of the obligations of confidentiality in this Agreement or which either party can show was in its written records prior to the date of disclosure or the same by the other party under this Agreement or which it receives from a third party independently entitled to disclose it or which it is required by law or regulatory authority to disclose.
16. Force Majeure
16.1 If either party is affected by Force Majeure it shall forthwith inform the other party in writing of the matters constituting the Force Majeure and shall keep the other party fully informed of the continuance and of any change of circumstances whilst such Force Majeure continues. If the Force Majeure is in effect for 20 Business Days the Company has the right to terminate this contract on written notice
17 Data Protection
17.1 The Company shall comply with the Data Protection Act 1998
17.2 information about shared ram ownership is collected at the point of rams entry for semen and/or embryo collection, the signature of the person leaving the rams for Semen and/or Embryo collection is understood to be in agreement with all the owners. All subsequent enquiries regarding this ram can be provided to all owners unless otherwise stated in writing.
Innovis Ltd (Registered Office)
Peithyll, Capel Dewi, Aberystwyth, Ceredigion SY23 3HU
These terms and conditions are available in large print upon request