Terms and Conditions

GENERAL TERMS AND CONDITIONS OF SALE

ADAMS CLINICAL NUTRITION LTD

 

The Buyer’s attention is particularly drawn to Clause 12

           

1. Definitions

 

Seller: Means ADAMS Clinical Nutrition Ltd of Sussex Innovation Centre, University of Sussex, Science Park Square, Falmer, Brighton, East Sussex BN1 9SB

 

Buyer: The person who buys or agrees to buy the Goods/and or Services from the Seller.

 

Conditions: The terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.

 

Goods: The items which the Buyer agrees to buy from the Seller as set out in the Order.

 

Price: The price for the Goods, excluding VAT and any carriage, packaging and insurance costs.

 

Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

 

Order: The Buyer's order for the supply of Goods and/or Services, as set out.

 

Services: The services supplied by the Seller to the Buyer as set out in the Order.

 

Seller Materials: Has the meaning set out in clause 12.1.6.

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2. Conditions

 

2.1 These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of Goods and/or Services, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.

 

2.2 All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and/or Services from the Seller pursuant to these Conditions.  

 

2.3 Acceptance of delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.

 

2.4 These Conditions may not be varied except by the written agreement of a director of the Seller.

 

2.5 These Conditions represent the whole of the agreement between the Seller and the Buyer. They supersede any other conditions previously issued.

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3. Price

 

The Price shall be the price quoted on the Order. 

3.1 Unless expressly agreed otherwise in writing, all prices shall be ex-works. All prices shall be exclusive of VAT, the costs of transporting and/or dispatching the products, other costs incurred in connection with delivery, government levies and/or taxes payable.

 

3.2 The Seller shall be entitled at all times to change its prices, on condition that prices already agreed may

be changed only if the cost-determining factors on which the prices are based have changed since the

Agreement was concluded and prior to delivery. Such price adjustments will not entitle the Purchaser

to terminate the Agreement. Such cost-determining factors include without limitation raw material

prices, labour costs, social security costs, taxes (including VAT and other government levies), import

and export duties and exchange rates

 

4. Payment and Interest

 

4.1 Payment of the Price and VAT shall be due within 30 days of the date of the Seller’s invoice.   

 

4.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 8% per annum above the Bank of England base rate from time to time in force.  Such interest shall accrue after as well as before any judgment.

 

4.3 The Buyer shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by the Seller.

 

5. Goods

 

5.1 The Goods are described in the Order.

 

5.2 The Seller reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.

 

6. Warranties

 

The Seller does not make any express or implied warranty as to the merchantability or fitness for any particular purpose of the products. This warranty will lapse if the Purchaser fails to fulfil its obligations under the Agreement and/or these Terms and Conditions. Invoking the warranty will not release the Purchaser from its obligations under the Agreement and/or these Terms and Conditions. In case of a breach of the warranty, the Purchaser's only remedy is a claim for performance of the Agreement by The Seller.

 

6.1 The Seller warrants that the products sold to the Purchaser shall at the moment of delivery shall:

 

6.1.1 comply with the specifications as provided by The Seller to the Purchaser for such products;

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6.1.2 be of satisfactory quality with the meaning of the Sale of Goods Act 1979;

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6.1.3 be fit for any purpose held out by the Seller; and

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6.1.4 be carried out in accordance with the Supply of Goods and Services Act 1982.

 

7. Delivery of Goods

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7.1 Delivery of the Goods shall be made to the Buyer’s address.  The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery.

 

7.2 The Seller undertakes to use its reasonable endeavours to despatch the Goods on an agreed delivery date but does not guarantee to do so.  Time of delivery shall not be of the essence of the contract.

 

7.3 The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods.  If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the contract, and a pro-rata adjustment to the Price shall be made.

 

7.4 If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are ready for despatch, the Seller shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of so doing.

 

8. Acceptance of the Goods

 

8.1 The Buyer shall be deemed to have accepted the Goods 7 days after delivery to the Buyer. 

 

8.2 The Buyer shall carry out a thorough inspection of the Goods within 7 days and give notice in writing to the seller after discovering that some or all of the goods do not comply with the Warranty above, the Buyer must return the Goods to the Seller at the Buyer’s cost and the Seller shall, at its option, repair or replace any Goods that are defective, or refund the price of such defective Goods.

 

8.3 Where the Buyer has accepted, or has been deemed to have accepted, the Goods the Buyer shall not be entitled to reject Goods which are not in accordance with the contract. 

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9. Title and risk

 

9.1 Risk shall pass on delivery of the Goods to the Buyer’s address.

 

9.2 Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Seller and shall not pass to the Buyer until the amount due under the invoice for them (including interest and costs) has been paid in full.

 

9.3 Until title passes the Buyer shall hold the Goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Seller.

 

9.4 The Seller may at any time before title passes and without any liability to the Buyer:

 

9.4.1 repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them; and

 

9.4.2 for that purpose (or determining what if any Goods are held by the Buyer and inspecting them) enter any premises of or occupied by the Buyer.

 

9.5 The Seller may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.

 

 

10. Supply of Services

 

The Seller agrees:

 

10.1 To undertake and provide the Services in accordance with any brief and deadline agreed with the Buyer and;

 

10.2 To manage and carry out the Services in an expert and diligent manner and to provide his/her services to the best of his/her technical and creative skill and to be solely responsible for how the services are provided;

 

10.3 To the best of his/her ability, promptly and faithfully to meet the Deliverables and deadlines agreed with the Buyer;

 

10.4 the Seller is free to undertake and accept other engagements, except those which lead or might lead to any conflict of interest between the Seller and the Buyer during his or her appointment;

 

10.5 To use such suitably qualified and experienced personnel as he or she may from time to time deem appropriate;

 

10.6 The Seller has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the Buyer has the right to refuse the replacement if, in the reasonable view of the Buyer, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Seller will remain responsible for its obligations under the agreement and will be responsible for the payment of the replacement, so that there will be no further payments outside of the agreed terms to pay for any handover period between the original and the replacement.

 

10.7 To keep the Buyer informed of progress on the Services in which they are engaged and shall produce written reports on the same from time to time when so requested by the Buyer. While the Seller’s method of working is entirely their own and they are not subject to the control of the Buyer, they shall nevertheless comply with this and any other reasonable requests of the Buyer (or its clients) which do not impact upon the Seller’s method of working.

 

11. Buyer’s obligations

 

11.1 The Buyer shall:

 

11.1.1 Ensure that the terms of the Order are complete and accurate;

 

11.1.2 Co-operate with the Seller in all matters relating to the Services;

 

11.1.3 Provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer's premises as reasonably required by the Seller to provide the Services;

 

11.1.4 Provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

 

11.1.5 Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

 

11.1.6 keep and maintain all materials, equipment, documents and other property of the Seller (Seller Materials) at the Buyer's premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller's written instructions or authorisation.

 

11.2 If the Seller's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):

 

11.2.1 the Seller shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Seller's performance of any of its obligations;

 

11.2.2 the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller's failure or delay to perform any of its obligations as set out in this clause 12.2; and

 

11.2.3 The Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.

 

 

 

12. Limitation of Liability: 
THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

 

12.1 Nothing in these Conditions shall limit or exclude the Seller's liability for:

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12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

 

12.1.2   fraud or fraudulent misrepresentation;

 

12.1.3   breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

 

12.1.4   breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

 

12.1.5   defective products under the Consumer Protection Act 1987.

 

12.2 Subject to clause 12.1:

 

12.2.1 The Seller shall never be liable for indirect loss of any kind including consequential loss and lost profits, and non-material loss suffered by the Purchaser or by a third party as a result of The Seller, or a person for whom it is liable under the law, failing in the performance of the Agreement

 

12.2.2 The Seller shall not be liable for damage, of whatever nature and in whatever form, which arises after the products delivered by The Seller have been treated and/or processed.

 

12.2.3 The Seller does not guarantee the completeness and accuracy of information received by The Seller from its own supplier and will not be liable for any damage – of whatever nature and in whatever form – incurred as a result of the incompleteness or inaccuracy of this information.

 

12.2.4 The liability of The Seller shall at any event be limited at all times per event, with a series of connected events counting as one event, to the amount that is paid out under GENERAL TERMS AND CONDITIONS OF SALE, The Seller’s General terms and conditions of sale. The Seller’s business liability insurance policy in the case concerned.

 

12.2.5 The Purchaser must compensate The Seller for, and indemnify it against, all third-party claims,

for whatever reason, in connection with compensation for any damage, costs, interest and/or

losses which arise in connection with the products delivered by The Seller to the Purchaser, unless and insofar as the Purchaser demonstrates that the claim falls exclusively within The Seller's area of responsibility.

 

12.2.6 The provisions of this Article shall also apply in favour of all legal or natural persons used by

The Seller to perform the Agreement.

 

12.2.7 Any claim for damages shall in any case lapse three months after the time of delivery.

 

 

12.3 After the Warranty Period, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

 

12.4 This clause 12 shall survive termination of the Contract.

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13. Offers and Agreements

 

13.1 All offers, quotes and price proposals from The Supplier will be subject to contract at all times and may be amended or revoked at any time, regardless of whether they contain a period for acceptance.

 

13.2 All verbal supplements, promises or changes shall be binding only if they have been made by authorised people at The Supplier.

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13.3 Samples and models shown or provided shall serve as indications only, without the products having to comply with those samples and models. Minor variations in stated size, weight, number, colour and suchlike shall not be considered to be defects. Commercial practice shall determine whether variations are minor.

 

13.4 The Supplier shall be entitled at all times, before starting or continuing its performance, to require security from the Purchaser for the fulfilment of any of its obligations under any Agreement. The security shall be provided in the manner stipulated by The Supplier.

 

13.5 If the Purchaser has not provided security within 14 days of a request to that effect, in the manner stipulated by The Supplier, all amounts owed by the Purchaser to The Supplier shall be due and payable in full and immediately, without prior notice of default being required.

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14. Termination of Agreement

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14.1 [This Agreement will terminate on fulfilment of the Services.]

 

14.2 In addition, either party shall have the right to terminate this Agreement at any time by summary notice without any payment in lieu in the event of:

 

14.2.1 The other party being in material or persistent breach of any of the terms of this Agreement; or  

           

14.2.2 The other party persistently and wilfully neglecting or becoming incapable for any reason of efficiently performing the Services or failing to remedy any default in providing the Services; or

 

14.2.3 The other party dying or becoming by reason of incapacity incapable of managing their affairs; or

 

14.2.4 The other party having a bankruptcy order made against him or her or making any arrangement with his or her creditors or having an interim order made against him or her; or

 

14.2.5 The other party taking any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.

 

14.2.6   There being a change of control of the other party; or

 

14.2.7   A party’s financial position deteriorates to such an extent that in the other party's reasonable opinion that party’s capability to adequately fulfil its obligations under this Agreement have been placed in jeopardy; or

 

14.2.8   A party doing any action manifestly prejudicial to the interests of the other party or which in the opinion of the other party may bring them into disrepute.

 

and that party shall have no claim against the terminating party in respect of the termination of his or her appointment for any of the reasons specified pursuant to Clauses 14.2.1 to 14.2.8.

 

15. Consequences of Termination

 

15.1 The Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Seller may submit an invoice, which shall be payable immediately on receipt;

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15.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

 

15.3 The termination of this agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

 

 

16. Notices/Communications

 

16.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.

 

16.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by ore-mail, one Business Day after transmission.

 

16.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

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17. Entire Agreement

 

17.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

17.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

 

18. Force Majeure

 

18.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;

 

18.2 For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:

 

18.2.1 Strikes, lockouts or other industrial action;

 

18.2.2 Terrorism, civil commotion, riot, invasion, war threat or preparation for war;

 

18.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;

 

18.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and

 

18.2.5 Political interference with the normal operations.

 

19. Assignment and Other Dealings

 

19.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.

           

19.2 The Buyer shall not, without the prior written consent of the Seller, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.

 

20. Survival of Causes of Action

 

The termination of this Agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

 

21. Severability

 

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.

 

22. Waiver

 

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.  No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

23. Variation

 

23.1 No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).

 

23.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

 

24. Law and Jurisdiction

 

24.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

 

24.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).