Terms and Conditions

This document sets out the standard terms and conditions of business (Terms) of Bionema Limited, a company incorporated in England and Wales under number 8118850 whose registered office is at Charter Court Phoenix Way, Enterprise Park, SA7 9FS (Supplier). The Terms shall apply to a contract for the supply and purchase of goods and services entered into between the customer whose details are set out in the Order (as defined below) and the Supplier.

1. Definitions

1.1 In these terms and conditions the following definitions apply:

Affiliate: of a party means any entity which directly or indirectly owns or controls, is directly or indirectly owned or controlled by, or is in common ownership or control with, that party;

Business Day: means a day other than Saturday, Sunday and public holidays when clearing banks generally are open for business in London;

Commencement Date: means the date on which provision of the Services shall commence as specified in the Order;

Confidential Information: means any commercial, financial or technical information relating to the products, services, plans, Know-How or trade secrets of a party and which has been identified as confidential or would otherwise reasonably be considered to be confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;

Contract: means the agreement between the Supplier and the Customer for the supply and purchase of the Services and the Deliverables and/or the sale and purchase of the Goods, in each case incorporating these Terms and the Order;

Customer Materials: means all documents, materials, data, proprietary software (and media on which they are each recorded), supplied by the Customer to the Supplier;

Deliverables: means all documents, products and materials produced by the Supplier or its agents in relation to the Services and to be supplied to the Customer, as set out in the Order;

Delivery Location: means the address for delivery of the Goods as set out in the Order;

Force Majeure: means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to): an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or interruption or failure of material required by or for performance of the Contract; except that any party’s failure to pay shall not be a Force Majeure in any event;

Goods: means the goods and related accessories and documentation to be supplied by the Supplier to the Customer, as set out in the Order;

Intellectual Property Rights: means copyright, patents, Know-How, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar and related rights and, in each case whether registered or not, including any applications to protect or register such rights and all renewals and extensions of such rights or applications, whether vested, contingent or future, to which the Supplier is or may be entitled and in any part of the world;

Know-How: means all relevant know-how, inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, tests, trade secrets, reports, component lists, manuals, instructions, drawings, information relating to customers and suppliers and all other knowledge and/or information (whether written or in any other form and whether confidential or not) relating to the owning party or any of its business or assets;

Order: means the Customer’s written order for the Services and/or Goods from the Supplier or in the Customer’s written acceptance of the Supplier’s quotation for the supply of Services and/or Goods;

Services: means the services and other Deliverables to be supplied by the Supplier to the Customer, as set out in the Order;

Specification: means, as applicable, the description or specification for the Services, Deliverables and/or Goods set out in the Order;

Supplier Materials: means: (i) any organisms, cells, molecules, DNA, or germplasm that is provided to the Customer or replicated or derived by the Customer from original samples of the Supplier Materials provided to the Customer by the Supplier, together with: (ii) all documents, equipment, data, proprietary software (and the media on which they are each recorded), and other similar or related property or materials of whatever nature which are provided to the Customer pursuant to the Contract, whether such materials are owned by the Supplier at the date of the Contract or are subsequently created by the Supplier independently of the Contract;

Supply Location: means the address for provision of the Services (if any) as set out in the Order;

Value Added Tax or VAT: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the supply of the Services;

Warranty Period: has the meaning given in clause 10.2.

1.2 Unless the context otherwise requires each gender includes the others; the singular includes the plural and vice versa; references to the Contract includes the Terms, the Order and its schedule (if any); references to persons include individuals, unincorporated bodies, government entities, companies and corporations; clause headings do not affect their interpretation; general words are not limited by example; and references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2. Application of the Terms

2.1 These Terms apply to and form part of the Contract for the supply of the Services and/or Goods by the Supplier to the Customer. They supersede any previously issued terms and conditions of supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of quotation, confirmation of order, specification or other document will form part of the Contract and no variation of the Terms or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory of the Supplier.

2.3 An Order will be deemed to be an offer to purchase Services and/or Goods from the Supplier in accordance with these Terms. Orders are not binding until accepted by the Supplier in writing. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.

2.4 Quotations issued by the Supplier are valid for twenty (20) Business Days from date of issue. Quotations will be deemed to be an invitation to treat by the Supplier to supply Services and/or Goods on and subject to the Terms, and do not constitute an offer to sell or supply. If the Customer wishes to purchase Services and/or Goods the subject of a quotation, it will need to place an Order.

2.5 Marketing and other descriptive matter relating to Services and/or Goods are illustrative only, and do not form part of the Contract. The Customer agrees that, in placing an Order, it has not relied on any representation or statement by the Supplier not set out in the Contract.

2.6 A contract will be formed upon the earlier to occur of written acceptance by the Supplier of the Customer’s Order or the execution of a specific written agreement by both the Supplier and the Customer.

3. Price

3.1 The price for the Services and/or Goods will be as set out in the Order or, in default of such provision, will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.

3.2 The price does not includes packaging or delivery (which will be charged in addition) and does not include Value Added Tax which will be charged in addition at the then applicable rate.

3.3 Services are charged on the basis set out in the Order or, in default of such provision, on a time and materials basis at the Supplier’s then-current daily rates and (if applicable) overtime rates.

3.4 The Supplier may vary its rates and/or prices for Services from time to time, but may not more than once every three (3) months. The Supplier will give the Customer not less than thirty (30) days’ written notice of such variations.

3.5 Where a proposed increase under clause 3.4 is unacceptable to the Customer, it may terminate the Contract on giving twenty (20) Business Days’ written notice to the Supplier.

3.6 The Supplier reserves the right to increase the price for any undelivered Goods and/or Deliverables by giving thirty (30) Business Days’ written notice to the Customer, such increase to take effect in respect of any relevant Goods and/or Deliverables delivered after the expiry of such notice; or with immediate effect, by written notice to the Customer, where such increase arises as a consequence of any increase in the direct cost to the Supplier of supplying the relevant Goods and/or Deliverables which is due to any factor beyond the control of the Supplier.

3.7 If the Customer does not agree with any increase in the price notified in accordance with clause 3.6 then the Customer may terminate the Contract in respect of any undelivered Goods and/or Deliverables by giving the Supplier twenty (20) Business Days’ notice, such notice to expire no earlier than the date on which the price increase was due to take effect, provided always that the Customer shall accept delivery of (and shall, where applicable pay the increased price for) any Goods and/or Deliverables referred to in clause 3.6 in respect of which the Supplier had (at or prior to the time of receiving such notice) entered into an irrevocable commitment to purchase or subcontract from any third party.

4. Payment

4.1 The Supplier shall issue its invoices in accordance with the terms of the Order or, in default of such provision the Supplier shall issue its invoices in accordance with the terms of clauses 4.2 and/or 4.3, as applicable.

4.2 Invoices will include all information necessary to enable the Customer to check their accuracy.

4.3 In respect of Goods and Deliverables, the Supplier will invoice the Customer within thirty (30) days of the date of delivery of the Goods.

4.4 The Customer will pay all invoices (unless disputed in good faith) in full, without deduction or set-off other than as required by law, in cleared funds within ten (10) Business Days of the date of the relevant invoice and to the Supplier’s nominated bank account specified in the Order.

4.5 Time of payment is of the essence. Where sums due hereunder are not disputed in good faith and are not paid in full by the due date the Supplier may, without limiting its other rights, charge interest on such sums at 8% a year and interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

4.6 VAT will be charged by the Supplier and paid by the Customer at the then applicable rate.

5. Provision of services

5.1 The Supplier will provide the Services to the Customer in accordance with the Contract and the Specification. The Services will begin on the Commencement Date and be performed [for the period set out in the Order OR until provision is complete] or earlier termination of the Contract.

5.2 Whilst the Supplier will use reasonable endeavours to meet any milestone dates set out in the Order, such dates are approximate only, and time of performance is not of the essence.

5.3 The Supplier will not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event of Force Majeure or the Customer’s failure to perform its obligations under the Contract.

5.4 The Supplier may make any changes to the Services needed to comply with applicable law or safety requirements which do not materially affect the nature or quality of the Services, and will notify the Customer in advance of such changes.

6. Delivery of Goods

Goods will be delivered by or for the Supplier to the Delivery Location on the date(s) specified in the Order or made available for collection by the Customer at the Supplier’s or its carrier’s premises set out in the Order. The Customer will collect the Goods within the period specified in the Order.

6.2 The Goods will be deemed delivered if delivered by or for the Supplier under clause 6.1 on completion of unloading of the Goods at the Delivery Location or if collected by the Customer under clause 6.1, on completion of loading at the Supplier’s, or carrier’s as the case may be, premises.

6.3 The Goods may be delivered by instalments if provided in the Order. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.

6.4 The Supplier will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.

6.5 The Supplier will not be liable for any delay in or failure of delivery caused by the Customer’s failure to: (i) make the Delivery Location available, (ii) prepare the Delivery Location in accordance with the Supplier’s reasonable instructions as required for delivery or (iii) provide the Supplier with adequate instructions for delivery of the Goods, the Customer’s failure to collect the Goods from the Supplier’s premises; or an event of Force Majeure.

6.6 If the Customer fails to accept delivery of Goods in accordance with clause 6.1, or fails to collect the Goods as provided in clause 6.1, on the date or within the period set out in the Order:

6.6.1 delivery of the Goods will be deemed to have occurred at 9am on the next Business Day following the date set out in the Order or following the last day of the period set out in the Order; and

6.6.2 the Supplier will store and insure the Goods pending actual delivery or collection (as applicable), and the Customer will pay reasonable storage and insurance charges all reasonable costs and expenses incurred by the Supplier in doing so.

6.7 If five (5) Business Days following the due date for delivery or collection of the Goods or the last day of the period for delivery or collection of the Goods (as the case may be), the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods and the Supplier will deduct reasonable storage charges and costs of resale and account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the price paid by the Customer for the Goods.

7. Title and risk

7.1 Risk in the Goods will pass to the Customer on completion of delivery or when the Goods are transferred to the carrier under clause 6.1 and title to the Goods will pass to the Customer once the Supplier has received payment in full for the Goods.

7.2 The Customer may use or resell the Goods in the ordinary course of business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 16.1 has occurred or is likely to occur.

7.3 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clause 16.1, the Supplier may require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier and if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

8. Supplier’s obligations:

8.1 The Supplier will perform the Services using reasonable care and skill; use sufficient personnel who have appropriate skills and experience for their duties; provide and use sufficient and appropriate equipment and materials required to provide the Services; ensure that the Services comply with the Specification for the Warranty Period; obtain and maintain all licences, permits and other consents required for its performance of the Services and comply with all applicable laws and regulations; observe all rules and regulations notified to the Supplier and in force at the Supply Location and other Customer sites; and on completion of the Services or earlier termination of the Contract return all Customer Materials.

9. Customer’s obligations:

9.1 The Customer will place all Orders on these Terms and ensure that the contents of any Order are complete and accurate; co-operate fully with the Supplier and follow the Supplier’s reasonable instructions in relation to the performance of the Services and/or the delivery or collection of the Goods (as applicable); ensure that any Specification which it provides is complete and accurate and contains all information the Supplier may require; obtain and maintain all necessary licences and consents for the performance of the Services; keep all Supplier Materials at the Supply Location or other Customer premises safely and at its own risk and in the same condition as they were in when supplied (fair wear and tear excepted); not dispose of or use any Supplier Materials without the Supplier’s prior written agreement; afford the Supplier access to the Supply Location and such other Customer sites, and shall prepare them for supply of the Services and/or Goods; afford the Supplier reasonable access to the Customer personnel; and provide the Supplier such facilities, information and assistance (ensuring that information is complete and accurate), in each case as may be reasonably required to allow for the delivery of the Goods and/or the performance of the Services by the Supplier.

9.2 The Customer will pay the price for the Services in accordance with the Contract.

9.3 The Services are provided at the Customer’s request and the Customer is responsible for verifying that the Services are suitable for its own needs.

10. Warranty

10.1 The Supplier warrants that on completion of the Services, they will comply with the Specification, on delivery of the Goods, they will conform in all material respects to their description and the Specification and be free from material defects in design, material and workmanship, and it has clear title to the Deliverables and the right to provide them to the Customer.

10.2 Each of the periods referred to in clauses 10.1 and 10.1 above shall be a Warranty Period.

10.3 Subject to clause 10.6, where Services fail to comply with clause 10.1 the Supplier will, at its option, re-perform them to comply with the Contract

10.4 Subject to clause 10.6, where Goods fail to comply with clause 10.1 the Supplier will, at its option, repair, replace or refund the price of defective Goods, provided that the Customer informs the Supplier in writing during the Warranty Period and promptly on discovery that some or all of the Goods do not comply with clause 10.1, the Customer gives the Supplier a reasonable opportunity to examine the defective Goods, and the Customer returns the defective Goods to the Supplier at the Supplier Buyer’s expense.

10.5 These Terms will apply to any Services re-performed under clause 10.3 and any Goods repaired or replaced under clause 10.4.

10.6 The Supplier will not be liable for any failure of any Services and/or Goods and/or Deliverables to comply with the warranties given at clauses 10.1 and 10.1 to the extent:

10.6.1 in respect of Goods and/or Deliverables, where such failure arises by reason of fair wear and tear, wilful damage, negligence, abnormal working conditions, or could be expected to arise in the normal course of use of the Goods and/or Deliverables;

10.6.2 caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Services and/or Goods (as applicable);

10.6.3 caused by the Supplier following any Specification or other document supplied by or instruction from the Customer;

10.6.4 where the Customer alters or modifies the Services (or the results of the Services) and/or the Goods without the Supplier’s prior written agreement or, having received such agreement, not in accordance with the Supplier’s instructions; or where the Customer uses the Services (or the results of the Services) and/or the Goods after notifying the Supplier that the Services do not comply with clause 10.1.

10.7 Except as set out in this clause 10 the Supplier gives no warranty in relation to the Services, Goods or Deliverables and will be under no liability for their failure to comply with the warranty in clause 10.1, in particular, the terms implied by sections 13, 14 and 15 of the Supply of Goods and Services Act 1982 are expressly excluded.

11. Liability Failure of or delay in performance

11.1 If the Supplier is prevented or delayed in performing the Services by actions of the Customer, the Supplier (without prejudice to its other rights) may suspend performance of the Services until the Customer remedies its default, will not be liable for any costs or losses sustained by the Customer as a result of such suspension and may charge the Customer (and the Customer will pay in accordance with the Contract) costs or losses incurred by the Supplier arising from the Customer’s default, subject to clause 11.

12. Limits on Liability

12.1 The Supplier does not exclude liability for death or personal injury caused by its negligence; or for breach of the term implied by section 2 of the Supply of Goods and Services Act 1982; or for defective products under the Consumer Protection Act 1987; or for fraud or fraudulent misrepresentation; or under any indemnity given by it; or any liability which may not be legally excluded.

12.2 Neither party will be liable for loss of data or use; any form of indirect, consequential or special loss; or any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect, however arising in each case.

12.3 Other than as set out above, the Supplier limits its liability in respect of or in connection with Services and/or Goods, and otherwise in connection with the Contract, to the lower of £50,000; and one hundred per cent (100%) of the total price of the Services and Goods under the Contract in total.

13. Intellectual Property Rights

13.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Supplier Materials or the Customer Materials (together the Materials) which are and shall remain vested in the Supplier and the Customer respectively.

13.2 To the extent that Materials are used or incorporated into the Services or any part of the Deliverables or Goods, each of the parties acknowledges and agrees that the other is licensed to use the same upon the terms set out in clause 13.3.

13.3 Each party (the Holder) hereby grants to the other (the Recipient) a royalty-free, worldwide licence, revocable only for breach by the Recipient of the terms of the Contract, to use its Materials solely to the extent necessary to supply or use the Goods and/or the results of the Services.

13.4 The Recipient:

13.4.1 will not use the Holder’s Materials for any other purpose;

13.4.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of the Holder (except so far as required for interoperability);

13.4.3 may sublicense its Affiliates to use the Holder’s Materials on the terms of this clause 13.4, and provided that the Recipient is liable for any breaches by them of such terms, but will not otherwise assign, sublicense or deal with the Holder’s Materials;

13.4.4 unless expressly agreed otherwise in writing, hereby assigns to the Holder, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Holder’s Materials or the results of the Services.

13.4.5 The Holder will defend or, at its option, settle any action brought against the Recipient arising from any claim that the receipt or use by the Recipient of the Holder’s Materials, whether in the provision or receipt of the Services, the results of the Services or of the Goods (as the case may be), in each case in accordance with the Contract, infringes any third party Intellectual Property Rights, and indemnify the Recipient against all reasonable costs and expenses incurred by the Recipient in connection with such claim.

13.4.6 The Holder’s obligations under clause 13.4.5 will not apply to Services provided or received, or Goods or results of the Services where these are produced, provided, modified or used, by the Recipient other than in accordance with the Contract. The Recipient will indemnify the Holder against all reasonable costs and expenses incurred by the Holder in connection with any claim arising from such receipt, production, provision, modification or use.

13.4.7 The Holder’s obligations under clause 13.4.5 are conditional on the Recipient (a) promptly advising the Holder in writing of any claim or action; (b) making no admission, settlement or compromise of any claim or action without the Holder’s prior written consent; (c) giving the Holder sole conduct of any defence and settlement negotiations; and (d) co-operating fully with the Holder at the Holder’s expense and providing the Holder with reasonable assistance in the defence or settlement of such claim or action.

13.4.8 The Recipient’s reasonable costs of compliance with clauses 13.4.7 and 13.4.7 will be paid by the Holder.

13.4.9 The provisions of this clause 13 set out the Holder’s entire liability and the Recipient’s sole right in respect of third party Intellectual Property Rights infringement claims or actions.

14. Confidentiality

14.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to any information which was in the public domain at the date of the Contract; any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; is independently developed by the other party without using information supplied by the first party; or any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

14.2 This clause 14 will remain in force for a period of two (2) years from the date of termination of the Contract, however arising.

15. Force Majeure

15.1 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration; and uses reasonable endeavours to minimise the effects of that event.

15.2 If, due to an event of Force Majeure, a party is or will be unable to perform a material obligation; or is delayed in or prevented from performing its obligations for a continuous period exceeding thirty (30) days, the parties will, within thirty (30) days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent, but if it is not possible to conclude such renegotiation to the mutual satisfaction of the parties within a further fifteen (15) days, the party not affected by the Force Majeure event may terminate the Contract on immediate written notice.

16. Termination

16.1 The Contract may be terminated forthwith at any time by either party on written notice to the other if the other is in material breach of the Contract and fails to remedy such breach within ten (10) Business Days of written notice to do so; the other is unable to pay its debts as they fall due or is threatened with or does receive any resolution to wind up its business or enter into involuntary or compulsory liquidation or has an administrator, administrative receiver appointed over all or part of its assets; the other (being an individual) dies or ceases to be capable of managing his own affairs; or the other is subject to an event of Force Majeure under clause 15.

16.2 The Supplier may terminate the Contract at any time on thirty (30) days’ written notice to the Customer or immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Contract within three (3) Business Days of the due date.

16.3 The Customer may terminate the Contract at any time on thirty (30) days’ written notice to the Supplier of under clauses 3.5 or 3.7.

16.4 On termination of the Contract for any reason the Customer will immediately pay all invoices of the Supplier then outstanding and not disputed in good faith; the Supplier will, within five (5) Business Days, invoice the Customer for all Services provided but not yet invoiced and the Customer will pay such invoice within a further ten (10) Business Days (unless the invoice is disputed in good faith); each party will within ten (10) Business Days return any materials of the other then in its possession or control; if it fails to do so, the other may enter onto any premises of the first party and take possession of them. Pending such return or taking possession, the first party will be responsible for such materials and will not use them for any purpose not connected with the Contract; and accrued rights and liabilities of the parties will not be affected and any clause which expressly or by implication survives termination will do so.

17. General

17.1 Unless stated otherwise, time is not of the essence of any date or period specified in these Terms.

17.2 All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.

17.3 The parties are independent businesses and not principal and agent, partners, or employer and employee.

17.4 If any part of these Terms are found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Terms and the remaining provisions of the Terms will otherwise remain in full force.

17.5 Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received by first-class post: two (2) Business Days after posting; by airmail: seven (7) Business Days after posting; by hand: on delivery; by facsimile: on receipt of a successful transmission report from the correct number, and by e-mail: on receipt of a delivery or read receipt mail from the correct address.

17.6 No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

17.7 The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

17.8 These Terms prevail over those of the Order or Schedule (if any).

17.9 The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.

17.10 The Contract will bind and benefit each party’s successors and personal representatives.

17.11 The Contract will be governed by the law of England and Wales. Disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.