- “Agreement” means the relevant agreement with the Customer which shall consist of a either a Quotation, e-commerce / website order or Purchase Order (PO) via email or fax accepted by the Customer in accordance with clause 2.1 and these standard terms and conditions;
- “Customer” means the company, organization or individual which accepts the supply of Goods and/or Services;
- “Goods” means any products, items, materials and consumable substances which are sold to a customer whether individual, company or government agency;
- “IP” means intellectual property (whether registered or unregistered);
- “Liability” means any and all liability (including liability for the acts or omissions of Personnel): (a) for any breach of the Agreement; (b) for any misrepresentation, misstatement, or tortious act or omission, including without limitation, negligence arising under or in connection with the Agreement; (c) for any breach of statutory duty; (d) for any actual or alleged product defect or product liability; and/or (e) otherwise arising in connection with the performance or contemplated performance of the Agreement or any Goods delivered under the Agreement (including under indemnification provisions (if any));
- “Personnel” means any officers, employees, agents or contractors;
- “Price” means the price agreed for the Goods and/or Services;
- “Purchase Order (PO)” means the commercial source document or contract issued by a customer, customer’s purchasing department or agent that indicates the intent to purchase and the details on the items that are to be purchased such as the types of goods, quantity, and price;
- “Quotation (Quote)” means a document provided by Sussex Research Laboratories Inc. to the Customer to offer goods and/or services at a stated price and under specified terms and conditions;
- “SDS” means Safety Data Sheet. This may also be known as MSDS (Material Safety Data Sheet);
- “Services” means the services, including without limitation any custom synthesis services, analysis of data, interpretation of results, production of reports, contract research and development and distribution of samples, products and/or related services to be provided to the Customer by Sussex Research Laboratories Inc. under the Agreement;
- “SRL” means Sussex Research Laboratories Inc.
1. TERMS & CONDITIONS
Unless the terms and conditions are expressly accepted by SRL by a specific written amendment hereto, the Agreement between the parties shall be on these standard terms and conditions. All other terms and conditions (including any terms or conditions which the Customer purports to apply under any PO, confirmation of order, specification, or other document) are expressly excluded from the Agreement.
2. ORDERS & QUOTATIONS
- Any Quotation is given by SRL on the basis that no Agreement exists until the Customer has accepted and returned the Quotation without amendment. Any Quotation is valid for a period of 60 (sixty) days from the date of issue or as otherwise noted in the Quotation, provided that it was not previously withdrawn.
- Any purchase completed by the Customer via the website is regarded as an Agreement and will be processed as such.
- The Customer shall supply to SRL a PO and any other materials required for SRL to execute the Customer’s order for the supply of Goods and/or Services as the basis for an Agreement.
- SRL reserves the right at its sole and absolute discretion to refuse orders from Customers for the supply of Goods and/or Services, including without limitation to countries or individuals where the supply of Goods and/or Services would contravene any relevant export controls, economic sanctions, or other trade embargoes or restrictions imposed by its suppliers, the EU, the UN, or other.
3. DELIVERY & DAMAGE
- SRL shall endeavour to use its best and most reasonable efforts to supply the Goods and/or Services within the time agreed, and if no time is agreed, within a reasonable time.
- Any dates specified by SRL for supply of the Goods and/or Services are intended to be an estimate, and time for delivery shall not be made of the essence by notice. In no circumstances shall SRL be liable for loss or damage of any kind by any delay in the supply of the Goods and/or Services that have left SRL’s facility. SRL may make delivery of the Goods and/or Services by instalments and the Customer shall accept such instalments. In the event of any shortage of Goods, SRL may allocate available Goods among its customers in the manner it deems reasonable.
- Any liability of SRL for non-delivery of Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit against any invoice for such Goods.
- Unless otherwise specified in any Quotation, Goods shall be shipped at the Customer’s expense by FedEx International Priority®. SRL adheres to applicable regulations governing the shipment of Goods. Products that require special packaging and conditions may incur additional charges per shipment, for example – dry ice. For USA based recipients, by purchasing any applicable product from SRL, you authorize SRL to act as your agent for the purpose of preparing a Toxic Substances Control Act (TSCA) Certification.
- Any Goods which are damaged, defective, or incorrect when delivered to the Customer must be reported to SRL immediately. SRL may at its sole and absolute discretion elect to replace or refund the Customer in respect of such Goods, and any claim for refund or replacement must be made within 30 (thirty) days of delivery. After said 30 (thirty) days, any delivered Goods are deemed accepted and conforming to the Agreement. Any replacement Goods will be dispatched within a reasonable time. All Goods must be stored in accordance with instructions (found on the label and Certificate of Analysis (CoA) for each product) and no claim for any refund and/or replacement will be payable by SRL unless these instructions have been followed by the Customer at all times.
4. WARRANT & INDEMNITY
- SRL warrants that all items in the Goods and/or Services are correctly identified and in good order and have not, to the best of its knowledge, been tampered with, altered, added to or substituted in any way whatsoever prior to delivery to the Customer. Any statements (whether written or oral) as to the Goods supplied or Services carried out and all/any opinions in any reports or other communications provided by SRL to the Customer are made in good faith and if applicable on the basis of the Agreement. SRL products are subjected to tests to ensure quality. At time of dispatch, the standard purity and physical constants stated are typical values; each lot may vary. Further specification and information may be supplied on request.
- Save to the extent SRL is liable for negligence in its provision of the Goods and/or Services (subject to the other terms of this clause), SRL shall have no Liability for the use made by the Customer of the Goods and/or Services, for advice supplied by SRL to the Customer, and/or for any decisions taken by the Customer or costs incurred by the Customer in consequence of such use.
- Nothing in these standard terms and conditions excludes or limits the liability of SRL to the extent prohibited by law.
- Subject to clause 4.3:
- SRL’s total aggregate Liability (including for negligence) in all circumstances shall be limited to the value of the affected Goods and/or Services and the Customer shall have a duty to mitigate any loss suffered by it;
- SRL shall have no Liability in any circumstances for loss of profit, loss of business or revenue, loss of anticipated savings, depletion of goodwill, any third party claims, or any indirect or consequential loss or damage, which arise out of or in connection with any Agreement, even if advised of the possibility of such losses or damages.
- The Customer’s sole remedy in respect of any Liability of SRL or its Personnel shall be in damages as set forth and limited in these standard terms and conditions.
- Save insofar as SRL can be shown to have been negligent in providing the Goods and/or Services, the Customer shall: (a) fully indemnify SRL and SRL’s Personnel against any loss, damage or injury (including injury resulting in death) to property or person sustained by (i) SRL and/or its Personnel, (ii) the Customer and/or its Personnel, and (iii) any third party, where such loss, damage or injury is caused by the negligent act or omission or willful misconduct of the Customer or the Customer’s Personnel; and (b) fully indemnify SRL against all damages, costs, expenses of any kind whatsoever (including reasonable attorney’s fees and other professional fees) and losses suffered or incurred by SRL as a result of, or in connection with any third party claim brought against SRL resulting from death, injury, or any other damage or loss whatsoever occasioned by the use made of the Goods and/or Services including without limitation any report or other information or advice of SRL.
5. HEALTH & SAFETY
- Customer is responsible for the safe handling of all Goods supplied by SRL. Goods are supplied on condition the Customer shall ensure handling only by qualified personnel trained in laboratory procedures and familiar with any potential hazards. Information may not be available on the potential hazards of many chemical compounds. The absence of a warning shall not be interpreted as an indication or representation of safety. A complete SDS for all products is available upon request.
- The Customer shall ensure that the Customer’s Personnel attending SRL’s premises in connection with the Goods and/or Services comply at all times with all health and safety measures, procedures and protocols in place on SRL’s premises and with such other directions regarding safe working as SRL may direct. SRL reserves the right at its absolute discretion to refuse to admit to or remove from its premises any of the Customer’s Personnel who in SRL’s opinion are unable to comply with this clause 5.2.
6. RISK & TITLE
- Risk shall pass to the Customer on delivery. Title shall remain with SRL and shall not pass to the Customer until payment in full has been received by SRL.
- Until such time as title in the Goods has passed to the Customer:
- SRL shall have absolute authority to re-take, sell or otherwise deal with any of the Goods which have not yet been used by the Customer;
- SRL shall be reasonably entitled to require the Customer to either: (i) return the Goods to SRL at the Customer’s own cost; or (ii) reimburse SRL for the cost of providing the Goods.
- Responsibility and liability in respect of the safe storage and handling, use and subsequent disposal of Goods will transfer to the Customer on delivery, and the Customer shall ensure that all Goods are always handled appropriately on and after delivery by suitably qualified Personnel.
SRL reserves the right to amend the Price taking into account any variations in the Goods and/or Services due to additional information from or a request in writing by the Customer. SRL shall obtain the Customer’s prior written approval before performance of any additional work or variations in the Goods and/or Services. Unless expressly stated otherwise, all Prices are exclusive of applicable sales, use, excise, or other taxes, which shall be charged at the rate and in the manner prescribed by law from time to time.
- The Price shall become payable before performance of the Services and/or delivery of any Goods comprised in the Goods and/or Services or as otherwise set out in the Agreement. Payment shall be made by the Customer in the currency and at the time specified in the Agreement in default of which payment shall be due within 30 (thirty) days of the date of SRL’s invoice. SRL shall be entitled to payment for all instalments of Goods and/or Services supplied to the Customer, whether under a blanket order or otherwise.
- Payment is made when credited to SRL’s account. Negotiable instruments or promises to pay do not constitute payment.
- The Customer shall make all payments due under the Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement, bank fees or otherwise.
- The Customer shall pay to SRL, in addition to other amounts payable hereunder, any costs reasonably incurred by SRL (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to SRL from the Customer pursuant to the Agreement.
- SRL may appropriate sums received from the Customer against any debt due to SRL from the Customer (under this or any other Agreement), irrespective of any purported appropriation by the Customer.
- If the Customer fails to pay SRL any sum according to the Agreement then, without limiting any other right or remedy available to SRL:
- SRL may cancel the Agreement and all other agreements with the Customer or suspend any further deliveries to the Customer;
- SRL may immediately demand payment of any other invoices not yet due, with liability to pay interest on sums due applying from the date of the demand;
- SRL may take whatever steps are deemed necessary, without limitation, to secure payment;
- The Customer will be liable to pay interest to SRL on such sum from the due date for payment at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less, accruing on a daily basis until payment is credited to SRL’s account, whether before or after any judgement;
9. INTELLECTUAL PROPERTY
- Unless otherwise agreed in writing, the ownership of any and all rights in and to any data, results, reports, certificates of analysis, safety data sheets, copyright, patents, designs, conceptual solutions, analyses, processes, techniques, methodologies, inventions, software, databases, know-how, confidential information, and any other rights in IP, other than third party rights, arising as a result of SRL providing the Goods and/or Services, shall remain vested in SRL.
- The Customer shall not without the prior written consent of SRL use, exploit, divulge, or disclose to third parties any SRL IP which may be communicated to or gained by the Customer in connection with or as a result of SRL providing the Goods and/or Services, save that SRL shall grant the Customer a non-exclusive non-transferable, non-sub licensable right to use the SRL IP in any Goods provided to the Customer in accordance with the terms of this Agreement. No further license or immunity under any patent is granted or is to be implied by the supply of any Goods and/or Services.
- The Customer assumes sole liability for all patent matters arising from its use of Goods supplied. Any usage instructions or recommendations made by SRL shall not be taken as a license to operate under nor to infringe any third-party patent.
- The Customer hereby agrees to indemnify and hold harmless SRL in respect of all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by SRL arising out of or in connection with any use of the Goods and/or Services supplied in a manner which infringes, or allegedly infringes, the intellectual property rights of a third party.
Both parties shall use reasonable endeavours to keep confidential for a period of five (5) years from the acceptance date of the supply of Goods and/or Services any confidential information (oral or written) provided or disclosed by or on behalf of the other. This clause shall not apply to any information which at the time of disclosure is (or subsequently becomes) published or generally available to the public (other than as a breach of the receiving party’s obligation under this clause), which at the time of disclosure was already in the possession of the receiving party (other than under an obligation to the disclosing party), which subsequently legally comes into their possession from another source, which was independently developed, or which is required to be disclosed in order to comply with a legal requirement.
11. RESTRICTIONS ON USE – SRL NAME & PRODUCTS
- SRL’s products are intended for laboratory research purposes only and unless otherwise indicated are not to be used for any other purpose.
- The Customer shall not use SRL’s name in any way to imply endorsement or otherwise by SRL for any process, information, advice, product, or service provided, marketed, or sold.
- For the avoidance of doubt, any expiration date specified on shipping documentation relating to the Goods is an estimate of expected useful life and does not constitute a warranty.
12. CANCELLATION & TERMINATION
- If the Customer cancels, extends or delays (or purports to cancel) the Agreement or part thereof, or fails to accept supply of the Goods and/or Services at the time agreed or if no time is agreed within a reasonable time, then the Customer shall be liable for (without prejudice to any other rights of SRL) and shall indemnify and keep indemnified SRL against any resulting loss, damage or expense or additional costs incurred by SRL in connection with the supply or non-supply of the Goods and/or Services including without limitation the cost of any services, material, or tools used or intended to be used therefor and the cost of labour and other overheads, including a percentage in respect of profit.
- Where the Goods and/or Services (or any part thereof) supplied by SRL to the Customer are for the provision of Synthesis Services, the Customer acknowledges that occasionally certain Synthesis Services can be difficult to perform. In the event that SRL is unable to perform and/or complete all or any part of the Synthesis Services for any reason (including without limitation due to technical and experimental difficulties) then SRL reserves the right at its sole and absolute discretion to cancel such custom synthesis services at any time and terminate the Agreement without liability to the Customer. Where SRL exercises its right to cancel under this clause 13.2, SRL shall notify the Customer in writing as soon as reasonably practicable, and (a) if the Quotation provides for a fixed Price and/or timeframe, then the Customer shall not be liable for payment for such Synthesis Services; or (b) if the Quotation provides for an estimate of Price and/or timeframe, then the Customer shall be liable only for payment of the Synthesis Services or part thereof performed by SRL as at the date of such cancellation notice.
- SRL may terminate the Agreement forthwith by notice in writing if the Customer is in material breach of the Agreement and, where such breach is remediable, the Customer fails to remedy the same within 30 (thirty) days of the receipt of a written request from SRL to do so.
- Each party has the right to terminate the Agreement at its discretion if the other party: (a) is unable to pay its debts; (b) is insolvent; (c) enters any form of bankruptcy, either compulsorily or voluntarily which is not dismissed within 60 (sixty) days; (d) is subject to a receiver or other third party (including without limitation a garnisher or trustee) being appointed over or taking or attempting to take possession of any the party’s assets; (e) takes or suffers any steps that could lead to the appointment of any insolvency office holder; or (f) undergoes any analogous occurrence under foreign law.
- The termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination. The clauses in the Agreement which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination. The Customer shall pay the Price in respect of any Goods and/or Services (or part thereof) supplied prior to termination, regardless of the reason for termination.
- If SRL is unable (whether temporarily or permanently) to procure any services or goods necessary to enable it to supply the Goods and/or Services or if the supply of the Goods and/or Services is prevented or hindered by reason of any cause beyond SRL’s reasonable control (governmental action, war or national emergency, acts of terrorism, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, currency restrictions, strikes or other labour dispute, or restraints or delays affecting shipping or carriers), SRL may cancel the Agreement by notice in writing to the Customer so far as it relates to the Goods and/or Services not then supplied or work not then done and such cancellation shall not give rise to any claims by the Customer provided that the Customer shall remain liable to pay for the Goods and/or Services supplied prior to the date of such cancellation.
13. LEGAL & REGULATORY COMPLIANCE
- The Customer will comply with all Statutory Requirements in force from time to time. Failure to comply with any provision of this clause 13 is grounds for immediate termination of this Agreement by SRL, which termination shall not result in any costs or compensation becoming payable by SRL to the Customer.
- The Customer agrees and undertakes that it shall not, and shall require that its employees and affiliates shall not, take any action in furtherance of an unlawful order, promise or payment, in violation of any applicable anti-bribery law, anti-corruption law and conflict of interest law including, without limitation, the United Kingdom’s Bribery Act 2010 or the United States Foreign Corrupt Practices Act (FCPA), nor take any action that would cause either itself or any other party (including SRL) to be in violation of the FCPA or the Bribery Act 2010.
- The Customer shall inform SRL if at any time it becomes aware, or should reasonably have become aware, that it has been entered on any denied persons, politically exposed persons or other sanctions lists maintained by the UK, the USA, the European Union, Canada or any other recognized national or international, governmental or quasi-governmental body. The Customer acknowledges that entry onto any such list is grounds for immediate termination of this Agreement by SRL in accordance with clause 13.1.
- The Customer shall not assign any Agreement or any part thereof without the written consent of SRL. SRL may assign the Agreement or any part thereof to any member of the SRL Group or its successors. SRL shall be entitled to sub-contract any part of the Services to be provided hereunder. Any attempted unauthorized assignment by Customer is null and void.
- Each right or remedy of SRL under the Agreement is without prejudice to any other right or remedy of SRL whether under the Agreement or not.
- If any provision of the Agreement shall be held to be illegal, invalid or unenforceable in whole or in part, either under enactment or role of law, such provision or part shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remaining provisions of the Agreement shall not be affected unless the absence of the unenforceable provision would materially affect SRL’s rights or remedies in which case SRL shall have the right to immediately terminate the Agreement.
- SRL reserves the right to announce publicly that it is providing Goods and/or Services to the Customer with the prior written consent of the Customer, not to be unreasonably withheld.
- Any waiver by SRL of any breach of, or any default under, any provision of any Agreement by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms or conditions of the Agreement.
- No term or condition of the Agreement is enforceable on any person who is not a party to the Agreement and SRL and the Customer may exercise, without the consent of any third party, any rights they may have to amend or rescind the Agreement.
- The construction performance and validity of the Agreement shall be governed by the internal laws of the Province of Ontario applicable to contracts made and performed in that province, without regard to principles of conflicts of laws, and the parties submit and waive any objection to the exclusive jurisdiction of the Provincial Courts in Ontario for adjudication of any disputes relating in any way to the Agreement or any Goods or Services delivered pursuant to the Agreement.