INNOVIS LIMITED CONDITIONS OF SUPPLY OF GOODS OR SERVICES (“the Conditions”)
The customer’s attention is in particular drawn to the provisions of Clause 9.
1. Definitions
In these Conditions:
“Business Day” means any day (other than Saturday) on which clearing banks are open for normal banking business in sterling in the City of London;
“Company” means Innovis Limited and any subsidiaries.
“Confidential Information” means all secret or confidential commercial, financial and technical information, knowhow, trade secrets, inventions, computer software and other information whatsoever and in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it;
“Contract” means the contract made between the Company and the Customer for supply of Goods, Advice and/or Services which is subject to and incorporates these Conditions;
“Customer” means the party with whom the Company contracts;
“Due Date” means the date 30 days from the date of the invoice;
“Force Majeure” any event which materially causes or hinders any Affected Party from complying with its obligations under this Agreement to the extent such cause or hindrance is outside the Affected Party's reasonable control (including, but not limited to, and without prejudice to the generality of the foregoing, strikes, lock-outs, labour disputes, acts of God, war, riot, civil commotion, malicious damage by a third party, compliance with any Legislation or regulation or rule of any regulatory authority, accident, breakdown, fire, flood, storm or terrorism)
“Goods” means all or any of the goods works and/or materials (including Semen) 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 encumbrancer 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 for the avoidance of doubt advice;
2. Basis of contract
2.1 These Conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).
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 acknowledgement of order.
2.3 No Contract shall come into existence until the Company issues a written acknowledgement 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.
2.5 No alteration to these Conditions shall be effective unless expressly agreed to in writing by a director of the Company.
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, provided that the Company has not previously withdrawn it.
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. Any typographical, clerical or other error or omission in any such sales literature, documentation or other information issued by the Company shall be subject to correction without any liability on the part of the Company.
4. Delivery
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. The Company shall not be liable for any failure to meet any such estimate (even if caused by the Company’s negligence), nor for any loss, of whatsoever nature resulting directly or indirectly therefrom, nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds [180] days.
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
4.6.1 As regards Semen, notification of non-delivery or short delivery (measured by the number of straws/pellets) or damage in transit (measured only where Semen cannot be used) must be made in writing to the Company within three Business Days of the receipt of Semen and, in the case of damage in transit, such notice must be accompanied with evidence of such damage;
4.6.2 As regards Goods (excluding Semen), notification of non-delivery or short delivery or damage in transit must be made in writing to the Company within three Business Days of the receipt of Goods and, in the case of damage in transit, such notice must be accompanied with evidence of such damage;
4.6.3 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. Cancellation
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 |
|---|---|
15-21 days |
20 |
8-14 days |
30 |
Up to 7 days |
50 |
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. Price
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.
7. Risk and title
7.1 Risk in the Goods shall pass to the Customer immediately an order is accepted 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;
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 but using only such force as may be necessary, 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 (including without limitation the 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. 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 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 the application of Section 12 of the Sale of Goods Act 1979; or
9.2.6 to exclude liability for fraudulent misrepresentation.
9.3 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage 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, in a sum which is greater than the value of the contract.
9.4 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty 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, unless otherwise agreed by the Company with the Customer in writing. 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 and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
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 – 17.30hrs) 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 as a variation to the Contract for the restoration of 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. General
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.
14.10 Entire Agreement
14.10.1 This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter;
14.10.2 Each party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement.;
14.10.3 Nothing in this clause shall limit or exclude any liability for fraud.
14. Third Party Rights
For the avoidance of doubt nothing in these Conditions shall confer on any third party any benefit or the right toenforce any provision of these Conditions or by virtue of the Contracts (Rights of Third Parties) Act 1999.
15. Confidentiality
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.
Innovis Ltd (Registered Office)
Brogerddan, Penrhyncoch, Aberystwyth, Ceredigion, SY23 3ED
Tel: 00 44 (0)1970 828236 Fax: 00 44 (0)1970 822018
These terms and conditions are available in large print upon request