BIOTRACK Ltd. TERMS and CONDITIONS of SALE
Custom Products: Products that are Designed and/or manufactured specifically for the Customer in accordance with a Specification.
Biotrack: Biotrack Limited (registered in England and Wales with company number 02895873).
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.7.
Contract: the contract between Biotrack and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person who purchases the Products from Biotrack.
Delivery Address: the location or ‘ship to’ address shown on the Sales Acknowledgement or such other location as the parties agree in writing.
Force Majeure Event: any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, civil commotion, interference by civil or military authorities, malicious damage, breakdown of plant or machinery, explosions, collapse of building structures, fires, floods, loss at sea, natural disasters or default of suppliers or subcontractors.
Products: the products set out in the Order (including Custom Products, if applicable).
Order: the Customer's order for the Products.
Sales Acknowledgment: The document issued by Biotrack and sent to the customer setting out the price for the products, the delivery address and an estimated date of shipment.
Specification: any specification for Custom Products, including any related plans and drawings, that is agreed in writing by the Customer and Biotrack.
Warranty Life: the period specified in the Statement of Limited Warranty document.
WEEE Regulations: The Waste Electrical and Electronic Equipment Regulations 2013
1.2 Construction. In these Conditions, the following rules apply:
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
c) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
d) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Following the making of an enquiry by the Customer, Biotrack will issue a Sales Quote. The Sales Quote shall not constitute an offer by Biotrack.
2.3 Following receipt of the Sales Quote the Customer shall submit an Order which constitutes an offer by the Customer to purchase the Products in accordance with the Sales Quote and these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.4 A Contract shall only come into existence when Biotrack sends the customer a written acceptance of the Order in the form of a sales acknowledgment. Following Biotrack’s written acceptance of the Order and the formation of the Contract, the Contract may only be cancelled with Biotrack’s written consent. Such consent shall only be given if the Customer agrees to indemnify Biotrack in full against all losses, damages and costs (including for labour and materials) incurred as a result of the cancellation of the Contract.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Biotrack which is not set out in the Contract.
3.1 The Products are described on Biotrack's website. Any drawings, descriptive matter, or advertising and any descriptions or illustrations contained in product sheets or on its website are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
3.2 To the extent that any Custom Products are to be manufactured in accordance with a Specification, the Customer undertakes to provide Biotrack with all information reasonably required for the Specification and warrants that all information provided by the Customer is full and accurate.
3.3 The Customer shall indemnify Biotrack against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Biotrack in connection with any claim made against Biotrack for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Specification or the development of a Custom Product.
4.1 Unless otherwise agreed between the parties in writing, Biotrack shall arrange for the shipping of the Products and the Customer shall arrange for the shipment insurance. Standard shipment terms are CPT to the Delivery Address (Incoterms 2010) .
4.2 Biotrack shall deliver the Products to the Delivery Address. Delivery of the Products shall be completed on the Products' arrival at the Delivery Address
4.3 The Sales Ackowledgment quotes a planned shipment date. Any dates quoted for shipment or delivery are approximate only, and the time of delivery is not of the essence.
4.4 Biotrack shall not be liable for any delay or failure in the delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide Biotrack with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5. QUALITY OF THE PRODUCTS
5.1 Biotrack warrants for the Warranty Life, the Products shall:
a) conform with their description;
b) be free from defects in design, material and workmanship;
c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
d) be fit for any purpose held out by Biotrack.
5.2 Subject to clause 5.3, if:
a) the Customer gives notice in writing to Biotrack during the Warranty Life within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1; and
b) Biotrack is given a reasonable opportunity of examining such Products and determines in its reasonable opinion that the breach of the warranty is due to defective materials or workmanship; and
c) the Customer (if agreed with Biotrack to do so) obtains an RMA (Return Material Authorisation) number and returns such Products to Biotrack's place of business.
Then Biotrack shall, at its option, repair or replace, or refund part or all of the price of the defective Products.
5.3 Biotrack shall not be liable for Products' failure to comply with the warranty set out in clause 5.1 in any of the following events:
a) the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
b) the defect arises because the Customer failed to follow Biotrack's verbal or written instructions as to the storage, commissioning, installation, use and maintenance of the Products;
c) the defect arises as a result of Biotrack following the Specification;
d) the Customer alters or repairs such Products without the written consent of Biotrack;
e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
f) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Biotrack shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 5.1.
5.5 The warranty in this clause shall not apply to components (forming part of the Products) that were not manufactured by Biotrack.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6. PRICE AND PAYMENT
6.1 The price of the Products shall be the price set out in the Sales Acknowledgment.
6.2 Biotrack may, by giving written notice to the Customer at any time before shipment increase the price of the Products to reflect any increase in the cost of the Products that is due to:
a) any factor beyond Biotrack's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
b) any request by the Customer to change the quantities or types of Products ordered, or their Specification, or the shipment date or shipment method.
c) any delay caused by any instructions of the Customer or failure of the Customer to give Biotrack adequate or accurate information or instructions.
6.3 The price of the Products is exclusive of the costs and charges of packaging, shipping and delivery of the Products, which shall be invoiced to the Customer.
6.4 The price of the Products is inclusive of amounts in respect of UK value added tax (“UK VAT”) if the Products are delivered within the UK or the European Union without a tax number for EU Intercommunity trade. The Customer shall, on receipt of a valid VAT invoice from Biotrack, pay to Biotrack such additional amounts in respect of VAT as are chargeable on the supply of the Products.
6.5 The price of the products is exclusive of any applicable taxes or duties which may be charged in the country of delivery. Any such duties and taxes are for the Customer’s account.
6.6 Biotrack may invoice the Customer for the Products at any time and reserves the right to require advance payment of the price of the Products in part or in full prior to shipment.
6.7 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made in the correct currency to the bank account as specified on the invoice. Receipts will only be issued to the Customer on request. Time of payment is of the essence.
6.8 If the Customer fails to make any payment due to Biotrack under the Contract by the due date for payment, then Biotrack reserves the right to charge interest on the overdue amount at the rate of 8% per annum above Barclays Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Biotrack may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Biotrack to the Customer.
7. TITLE AND RISK
7.1 Unless agreed otherwise in writing risk in the Products shall pass to the Customer as the products are handed to the first carrier as detailed under CPT of Incoterms 2010.
7.2 Title to the Products shall not pass to the Customer until Biotrack receives payment in full (in cash or cleared funds) for the Products.
7.3 If before title to the Products passes to the Customer the Customer commits a material breach of the Contract or becomes subject to a bankruptcy or insolvency event then, without limiting any other right or remedy Biotrack may have, Biotrack may at any time:
a) require the Customer to deliver up all Products (at the Customer’s expense) in its possession which have not been resold, or irrevocably incorporated into another product; and
b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
8.1 If the Customer wishes to return the Products under any provision of this clause 8, the Customer must:
a) notify Biotrack in writing that it wishes to return the Products;
b) obtain from Biotrack return instructions and an RMA number, and if requested to do so, provide proof of purchase.
8.2 If the Customer does not comply with clause 8.1, Biotrack may at its absolute discretion refuse to accept the return of the Products.
8.3 Return of goods for refurbishment or servicing - The Customer must notify Biotrack of its intention to return the goods and obtain from Biotrack return instructions and an RMA number.
8.4 Return of Products that the Customer is not satisfied with on delivery - If the Customer is not reasonably satisfied with the Products it must comply with clause 8.1 within 14 days of delivery. The Customer must then return the products to Biotrack in the same condition as when delivered, paying all the costs associated with returning the Products including shipping and insurance. Alternatively the Customer may return Products in person to Biotrack’s place of business during its business hours of 9 am to 5 pm on a Business Day. On receipt of the returned Products and confirmation that the Products are in their original condition, Biotrack will refund the price of the Products to the Customer by way of bank transfer.
8.5 Clause 8.4 does not apply to Custom Products.
8.6 Return of incorrect Products - If the Products delivered are not what were stated in the Order and this is due to a mistake by Biotrack, Biotrack will exchange the Products that have been delivered for the correct Products. The Customer should comply with clause 8.1 within 14 days of delivery, and then return the incorrect Products in the same condition as when delivered by post or another suitable carrier service and at the request of Biotrack arrange for insurance to be taken out for the transit of the Products. Biotrack will reimburse the Customer for any reasonable shipping or insurance costs incurred if provided with acceptable evidence of those costs .
8.7 Return of damaged or faulty Products - If the Products are damaged or faulty at the point of delivery, the Customer may return them and Biotrack will, at its absolute discretion, either exchange the Products or repair them. The Customer must comply with clause 8.1 within 14 days of delivery. The Customer should then return the damaged or faulty Products by post or another suitable carrier service and at the request of Biotrack, arrange for insurance to be taken out for the transit of the Products.
8.8 Clause 8.7 does not apply if:
a) In the reasonable opinion of Biotrack, the Products became damaged or faulty after the point of delivery or due to the fault of the Customer; or
b) Biotrack has informed the Customer that the Products were sold as second hand or at a discounted rate and the damage or fault has been pointed out to the Customer.
9. LIMITATION OF LIABILITY
The customer's attention is drawn in particular to the provisions of this clause 9.
9.1 Nothing in these Conditions shall limit or exclude Biotrack's liability for:
a) death or personal injury caused by its negligence;
b) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
c) defective products under the Consumer Protection Act 1987; or
d) any matter in respect of which it would be unlawful for Biotrack to exclude or restrict liability.
9.2 Subject to clause 9.1:
a) Biotrack shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business, or any indirect or consequential loss arising under or in connection with the Contract; and
b) Biotrack's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the higher of the value of the Products or the amount recoverable under insurance policies taken out by Biotrack.
10. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
11.1 WEEE Regulations. The Customer shall comply with its obligations for the appropriate disposal of the Products under the WEEE Regulations if within the UK, or with the obligations of any similar or equivalent legislation in countries outside of the UK.
11.2 Assignment and other dealings.
a) Biotrack may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b) The Customer may not 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 the Contract without the prior written consent of Biotrack.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.3a); 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 fax or e-mail, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.5 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
11.6 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Biotrack.
11.8 Governing law. The Contract, 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.
11.9 Jurisdiction. 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 Contract or its subject matter or formation (including non-contractual disputes or claims).