- In the Agreement (as defined below) the following terms have the following meanings:
- “Agreement”: the contract for the sale and purchase of the Goods, comprising the Conditions and an order made by the Customer for the supply of Goods which is accepted by BioSYLx in writing by an order confirmation or otherwise or any other contract between BioSYLx and the Customer for the sale and purchase of the Goods incorporating these Conditions;
- “Conditions”: the conditions of sale set out in this document;
- “Customer”: the person, firm or company who purchases the Goods from BioSYLx;
- “Goods”: the goods which BioSYLx has agreed to supply to the Customer, as specified in or by reference to the Agreement;
- “BioSYLx”: BioSYLx LLC (registered in Dubai, United Arab Emirates) whose registered office is 73 Sheikh Zayed Road, PO Box 95439, Abu Dhabi, United Arab Emirates.
II. Basis of the Agreement
- BioSYLx will sell and the Customer will purchase the Goods in accordance with the Agreement.
- The Agreement will constitute the entire agreement and understanding between the parties, and will supersede any previous agreements, in relation to the supply of the Goods.
- The Customer acknowledges and agrees that it has not been induced to enter into the Agreement in reliance upon, and does not have any remedy in respect of, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as expressly set out in the Agreement.
- Other than advice given in written instructions supplied with the Goods or that BioSYLx expressly confirms in writing that the Customer may rely on, BioSYLx will not be liable for any advice or recommendations given by BioSYLx or any of its employees or agents in relation to the choice, storage, application or use of the Goods.
- No variation to the Agreement will be binding unless agreed in writing by an authorised representative of BioSYLx.
III. Orders & Specification
- No order submitted by the Customer is to be treated as having been accepted by BioSYLx unless and until confirmed by an authorised representative of BioSYLx, in writing whether by the order confirmation, email or otherwise.
- The Customer will ensure that any order submitted to BioSYLx, together with any other information provided to BioSYLx in connection with the Agreement, is accurate and complete, and will give BioSYLx any necessary instructions relating to the Goods within a sufficient time to enable BioSYLx to perform the Agreement in accordance with its terms.
- BioSYLx reserves the right to make any changes to the specification of the Goods which are required to conform with any applicable safety or other statutory requirements and where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
- In the case of Goods not manufactured by BioSYLx any specifications given by BioSYLx in any quotation submitted by it are stated as correctly as possible having regard to the information provided to BioSYLx by any partner manufacturer or third party manufacturer, and any photographs, descriptions, illustrations or advertising matter are based on information obtained from such manufacturer of those Goods and represent generally the Goods offered but do not constitute a sale by description and BioSYLx will not have any liability to the Customer for any inaccuracy in any specification or other information obtained from the manufacturer.
IV. Prices & Payment
- The price of the Goods will be the price stated in or by reference to the Agreement or, where no price is stated, the price listed in BioSYLx’s published price list current at the date on which the Agreement is made. All prices stated in any quotation issued by BioSYLx are valid for 30 days only from the date of such issue unless otherwise provided in the Agreement.
- All sums payable by the Customer under the Agreement are to be paid in Euros unless otherwise provided in the Agreement.
- Unless otherwise agreed in writing between the Customer and BioSYLx all prices and any other amounts payable by the Customer are expressed exclusive of any value added tax or other sales tax.
- BioSYLx will be entitled to invoice the Customer for the price of the Goods, together with any delivery charges or applicable value added tax or other sales tax, at any time after despatch of the Goods unless otherwise agreed.
- The Customer will pay the full price of the Goods and any other sums owing under the Agreement in cleared funds within 30 days of the date of BioSYLx’s invoice unless otherwise agreed in writing (including by email).
- All sums payable by the Customer under the Agreement are to be paid without set-off, counterclaim or deduction of any description, save as may be required by law.
- BioSYLx reserves the right, by giving notice to the Customer at any time before delivery, to increase the price for the Goods to reflect any increase in the cost to BioSYLx of supplying the Goods which is due to:
- Any factor beyond the control of BioSYLx (such as, but without limitation, any foreign exchange fluctuation, significant increase in the costs of labor, raw materials or other costs of manufacture); and/or
- Any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer; and/or any failure of the Customer to comply with its obligations under the Agreement, including those under Condition 3.2 above.
- If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to BioSYLx, BioSYLx will be entitled to:
- Exercise its rights under Condition 9.2.1;
- Appropriate any payment made by the Customer to such of the Goods (or any goods supplied under any other Agreement between the Customer and BioSYLx) as BioSYLx may think fit (notwithstanding any purported appropriation by the Customer); and/or
- Charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above Barclays Bank PLC base rate from time to time from the due date until the date of actual payment in cleared funds; and/or
- Recover from the Customer all losses, damages, costs and expenses (including legal expenses) incurred as a result of the Customer’s failure to pay.
- Deliveries will be made according to the latest Incoterms, exact details and condition of delivery will be identified in the Agreement.
- BioSYLx will be under no obligation under section 32(2) of the Sale of Goods Act 1979.
- Any delivery dates specified in the Agreement are intended to be an estimate and BioSYLx will not be liable to the Customer for any failure to meet such dates and time for delivery will not be of the essence.
- If the Customer fails to take delivery of any consignment of Goods (except where the failure was the result of a default by BioSYLx) then, without prejudice to any other right or remedy that BioSYLx may have, BioSYLx may:
- Store the Goods until actual delivery and charge the Customer for the reasonable costs of storage (including insurance); and/or
- After 28 days have elapsed from the date of delivery specified in the Agreement sell the Goods at the best price readily obtainable and charge the Customer for any shortfall below the price referred to in Condition 4.1 above.
- Where the Goods are to be delivered in installments, each delivery will constitute a separate contractual obligation. Failure by BioSYLx to deliver any one or more of the installments in accordance with the Agreement, or any claim by the Customer in respect of any one or more installments, will not give the Customer the right to treat the Agreement as a whole as repudiated.
- The Customer shall pay invoices relating to separate deliveries by installments on the respective date for payment for each installment and payment may not be postponed until such time as all the Goods have been delivered under this Agreement.
- In the event the Goods are supplied in returnable or loaned packaging, the packaging will remain the property of BioSYLx and will only be used for the purpose of packing the Goods sold. BioSYLx accepts no liability for any damage or loss that occurs as a result of the packaging. In any event the packaging will be returned by the Customer in good condition and within the time specified in the Agreement.
- The Customer acknowledges that the packaging may be subject to regular inspection and testing as required by law and failure to return the packaging by the required date will void any future use. In particular where packaging is subject to testing at intervals prescribed by regulations or other law, such packaging shall be inscribed with the date of the most recent test. The Customer shall fully indemnify BioSYLx on demand for all liability, loss, damage, costs and expenses suffered by BioSYLx in relation to such packaging where ownership is transferred to the Customer or where the Customer fails to return the packaging before the date of the next required test. In the event the Customer supplies its own packaging it will ensure the packaging complies with all relevant and applicable laws and regulations.
- In the event of failure to return loaned or returnable packaging within the time specified in the Agreement or if the packaging is destroyed or returned damaged and/or with defects BioSYLx will be entitled to:
- Invoice the Customer for the cost of replacing the packaging and on payment thereof the Customer will become the owner of said packaging;
- Restore and repair the packaging to its original condition and invoice the Customer for the costs; or
- Be indemnified by the Customer for all liability, loss, damage, costs and expenses suffered by BioSYLx as a result of the Customer’s said failure.
- Where ownership of the packaging is transferred to the Customer, the Customer will ensure that all names, references, logos, trade marks etc. relating to BioSYLx or other previous owners are removed from the packaging and the Customer shall not use the packaging for any purpose other than that for which it was originally intended and BioSYLx shall not be liable for any use by the Customer of the packaging.
VII. Risk & Property
- Risk of damage to or loss of the Goods will pass to the Customer at the time of delivery by BioSYLx or at time of collection by the Customer (as applicable) or if the Customer wrongfully fails to take delivery of the Goods, the time when BioSYLx has tendered delivery of the Goods.
- Notwithstanding the passing of risk in the Goods to the Customer, title to the Goods will not pass from BioSYLx to the Customer until BioSYLx has received in cash or cleared funds:
- The full price (including applicable VAT or other sales tax); and
- The full amount of any other sums due from the Customer to the BioSYLx, whether under this Agreement or otherwise.
- Until title to the Goods passes from BioSYLx, the Customer will:
- Hold the Goods on a fiduciary basis as bailee for BioSYLx; and
- Keep the Goods (at no cost to BioSYLx) safely and securely stored, ensuring that the Goods are stored separately from all other goods in the Customer’s possession and marked in such a way that the Goods are clearly identified as BioSYLx’s property; and
- Keep the Goods insured (at no cost to BioSYLx) for not less than the full Price against “all risks” to the reasonable satisfaction of BioSYLx, and whenever requested by BioSYLx, produce to BioSYLx a copy of the policy of insurance together with suitable evidence that it remains in force; and
- Not remove, alter or interfere with the packaging or labels on the Goods.
- BioSYLx will be entitled to recover the Price (plus applicable VAT) from the Customer notwithstanding that title to any of the Goods has not passed from BioSYLx.
- Until such time as title to the Goods passes from BioSYLx the Customer will upon BioSYLx’s request immediately deliver up to BioSYLx all such Goods that remain the property of BioSYLx. If the Customer fails to do so BioSYLx may enter upon any premises owned occupied or controlled by the Customer where the Goods are situated and repossess the Goods and the Customer will indemnify BioSYLx against any costs, expenses, losses, damages or other liabilities that BioSYLx may suffer or incur in connection with the repossession of those Goods, whether arising out of any claims made against BioSYLx by any third party or otherwise.
- In the event of loss, damage or disappearance of any of the Goods howsoever caused the Customer will pay in full the Price of said Goods to BioSYLx.
- Any Goods remaining in the possession of the Customer will be presumed to be those Goods for which payment has not been made and BioSYLx will be entitled to take possession of said Goods without prejudice to any other rights of BioSYLx under this Agreement or to any claim for damages made by BioSYLx for total or partial failure to pay the price thereof.
- On termination of the Agreement however caused BioSYLx’s rights under this Condition 7 shall continue.
- Subject to Conditions 8.2 to 8.10 below BioSYLx warrants that the Goods will conform with any specification provided in the Agreement, subject to the provisions of this Agreement.
- The Customer will notify any damage, defect or shortage in respect of the Goods to BioSYLx in writing together with proof of the same:
- In the case of any shortage, or damage or defect which should have been apparent on delivery, promptly and in any event within 7 days of delivery;
- In the case of any damage or defect which was not reasonably apparent on delivery, promptly and in any event within 14 days of that damage or defect becoming apparent and no later than 3 months from the date of delivery; failing which all liability on BioSYLx’s part in respect of such shortage, damage or defect is excluded.
- Subject to Condition 8.2, if any Goods do not conform with the warranty in Condition 8.1 BioSYLx will at its option replace such Goods or refund the price of such Goods at the pro rata Agreement rate provided that, if BioSYLx so requests, the Customer will, at BioSYLx’s expense, return the Goods which are defective to BioSYLx.
- The aggregate liability (inclusive of interest and legal and other costs) of BioSYLx to the Customer in respect of all claims arising under or in connection with this Agreement (whether by reason of any negligence by BioSYLx or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract tortuous act or omission or otherwise) and in respect of any use made or resale by the Customer of any of the Goods shall be limited to the price payable by the Customer for the Goods.
- Subject as expressly provided in the Agreement, all warranties, conditions or other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
- BioSYLx will be under no liability and hold no responsibility for fitness for purpose in respect of any defect in the Goods arising from any specification supplied by the Customer.
- BioSYLx will be under no liability in respect of any defect in the Goods arising, at any time after delivery to the Customer, from any misuse, wilful damage or failure to follow BioSYLx’s instructions (whether oral or in writing) on the part of any person, other than BioSYLx and its employees or agents nor for defects caused by natural wear or external events.
- BioSYLx will have no liability to the Customer in respect of any claim that arises out of any failure by the Customer to ensure that reasonable steps are taken prior to any particular use (whether by the Customer or any other person) to verify that the Goods are suitable for that particular purpose.
- BioSYLx will not be liable to the Customer (whether by reason of any negligence by BioSYLx or any of its employees or agents, any non-fraudulent misrepresentation, or any breach of contract) for any indirect loss, damage, cost, expense, claim or other liability whatsoever which arises out of or in connection with this Agreement including without limitation any loss of profit, loss of goodwill or damage to reputation.
- BioSYLx will not be liable to the Customer or be deemed to be in breach of the Agreement as a result of any delay in performing, or failure to perform, any of its obligations under the Agreement where the delay or failure was caused by circumstances beyond BioSYLx’s reasonable control, including (but not limited to) any governmental restriction, machinery breakdown, power failure, industrial action or shortage of raw materials.
- BioSYLx will not be liable for any defect or other problem in any products with, in or into which the Goods are combined, merged or incorporated whether by the Customer or a third party after sale of the Goods by BioSYLx to the Customer and the Customer shall indemnify BioSYLx in respect of all claims, liability, loss, damage, costs and expenses made against or suffered by BioSYLx in connection with or in relation to any such defect or other problem.
- Nothing in the Agreement will operate to limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, or for fraudulent misrepresentation or for any other matter in respect of which liability cannot lawfully be limited or excluded.
IX. Breach & Insolvency
- This Condition 9 applies if any one or more of the following events occurs, or has occurred prior to the date of the Agreement and is continuing:
- The Customer commits a material breach of any of the provisions of the Agreement and in the case of a breach capable of remedy fails to remedy the same within 30 days (or such other notice period as BioSYLx reasonably thinks fit) after being served with a written notice specifying the breach and requiring it to be remedied; and/or
- The Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a firm) has one of its partners becomes bankrupt or (being a body corporate) enters administration or goes into liquidation; and/or
- A security holder takes possession, or a receiver or administrative receiver is appointed, over all or any of the property or assets of the Customer; and/or
- Anything analogous to any of the foregoing occurs to the Customer under the laws of any jurisdiction; and/or
- The Customer ceases, or threatens to cease, to carry on business; and/or
- BioSYLx reasonably believes that any of the events described above is about to occur.
- If this Condition 9 applies then, without prejudice to any other right or remedy available to BioSYLx under Condition 4.8 or otherwise:
- BioSYLx will be entitled to terminate the Agreement immediately by written notice to the Customer or (without prejudice to its right to terminate subsequently) suspend any further deliveries of Goods without any liability to the Customer; and/or
- all monies owed to BioSYLx by the Customer whether under this Agreement or otherwise will become immediately due and payable.
X. Intellectual Property and Confidentiality
- All intellectual property of whatever kind subsisting in, on or in relation to the Goods or their packaging will belong (as between BioSYLx and the Customer) to BioSYLx absolutely and no rights in such intellectual property are granted to the Customer save for a non-exclusive licence to use or resell the Goods for the purposes or in the manner contemplated by the Agreement.
- Each party will safeguard and keep confidential the terms of this Agreement and any and all confidential information that it may acquire in relation to the business or affairs of the other party.
- The Customer is not entitled to assign, sub-contract or otherwise dispose of any of its rights or obligations under this Agreement without the prior written consent of BioSYLx.
- BioSYLx may sub-contract its rights and obligations under the Agreement at any time without the consent of the Customer.
- If any provision in this Agreement is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, that provision will to the extent of such invalidity or unenforceability be deemed severable and all other provisions of this Agreement not affected by such invalidity or unenforceability will remain in full force and effect.
XIII. Exclusion of Third Party Rights
- Unless expressly stated in this Agreement, nothing in this Agreement will confer any rights on any person under the Contracts (Rights of Third Parties) Act 1999.
XIV. Governing Law & Jurisdiction
- This Agreement will be governed by and construed in accordance with the law of England and Wales, to which each of the parties irrevocably submits.
- Any dispute arising under or in connection with this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales, to which each of the parties irrevocably submits, providing both parties recognise that BioSYLx will be at liberty to start proceedings in any other jurisdiction it deems necessary.
Version: Revision 1
Date: 01 March 2018