In these Conditions:
“Additional Products” shall have the meaning set forth in Section 15.7.
“Company” means Molecular Devices Limited or any of its subsidiaries.
“Company Indemnities’” shall have the meaning set forth in Section 13.1.
“Conditions” means the terms and conditions of sale set out in this document and any special or additional terms and conditions that may be agreed upon in writing by the Company and attached in a written addendum to this document that is signed by both parties.
“Contract” means these Conditions for the purchase and sale of the Goods and or Services and any Quotation to which these Conditions may be attached.
“Customer” means the person who buys or agrees to buy the Goods and or Services from the Company, as identified in the Quotation.
“Customer Indemnities’” shall have the meaning set forth in Section 13.2.
“Goods” means the goods specified in the Quotation which the Company is to supply in accordance with the Conditions.
“Intellectual Property Rights” shall have the meaning set forth in Section 12.1.
“Losses” shall have the meaning set forth in Section 13.1.
“Purchase Order” shall have the meaning set forth in Section 2.1.
“Purchase Price” shall have the meaning set forth in Section 5.1.
“Quotation” shall have the meaning set forth in Section 2.1.
“Services,” means the services performed by the Company pursuant to the Conditions, including but not limited to training, relocation of equipment, the provision of service instructions and technical support and laboratory services.
“Software” shall have the meaning set forth in Section 14.1.
“Specifications” shall have the meaning set forth in Section 12.2.
“Taxes” shall have the meaning set forth in Section 5.2.
“Third Party Goods” shall have the meaning set forth in Section 8.1.
“Third Party Software” shall have the meaning set forth in Section 14.1.
2 Terms of Sale
2.1 The Company shall sell and the Customer shall purchase the Goods and or Services in accordance with any written quotation provided by the Company (the “Quotation”) which is accepted by the Customer in writing and these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions including, without limitation, the terms and conditions of any purchase order provided by Customer (each, a “Purchase Order”). In the event of any conflict between these Conditions and the terms and conditions of any Quotation, these Conditions will control.
2.2 As the Company’s employees and agents are not so authorised, any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed in writing.
2.3 Whilst every effort is made to ensure the accuracy of the descriptions, illustrations and material contained in any catalogues, price lists, brochures, leaflets or other descriptive matter of the Company, these represent the general nature of the items described therein and do not form part of the Contract nor amount to any representation or warranty by the Company. The Company reserves the right to modify the design of the Goods or the basis of the Service without notice.
2.4 If the Company shall cease to manufacture any Goods ordered by the Customer it shall give notice of the fact in writing to the Customer (but shall not be liable for any loss or damage occasioned thereby to the Customer) whereupon the Customer will have the option to be exercised within twenty-one days of the date of such notice, either to take equivalent goods (if available from the Company) or to cancel its Purchase Order without further liability upon the Company or the Customer.
2.5 In connection with laboratory services, the Customer acknowledges that these services are provided solely for research purposes, and not for any clinical, medical, pharmaceutical or diagnostic purpose (whether human or veterinary). The Company’s Goods are for research only. The Goods are not intended for diagnosis of diseases in humans or animals. The Goods are provided to the Customer on the basis that the Customer acknowledges this restriction as to use.
3 Quotation and Order
3.1 In the event that a written Quotation for Goods or Services is issued by the Company, such Quotation is provisional and may be altered by the Company in its sole discretion up until the date such Quotation is signed by the Customer Any Quotation provided by the Company that has not been signed by the Customer shall expire 30 days after the date of its issue unless otherwise agreed in writing by the Company.
3.2 Any Purchase Order provided by the Customer must include the following information:
3.2.1 sufficient information about the Customer’s requirements to enable the Company to proceed with the order and/or the provision of Services
3.2.2 satisfactory evidence of any licence or consent (statutory or otherwise) required for the sale or delivery of the Goods and/or the provision of Services; and
3.2.3 instructions as to the place, date and time of delivery of Goods and/or the provision of Services required.
3.3 The Company reserves the right (without prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of any of the Customer’s obligations to the Company not being met.
4 Indemnities by Customer
4.1 No Quotation which has been accepted by the Customer may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all losses, costs, damages, charges and expenses incurred by the Company as a result of cancellation.
4.2 Where Goods are to be made by the Company in accordance with the Customer’s specification, the Customer shall be responsible for the suitability and accuracy of the specification and the Customer undertakes to indemnify and hold harmless the Company against all losses, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person or entity which results from the Company’s use of the Customer’s specification.
5.1 The price of the Goods and Services shall be the price set forth in the Quotation or, at such price as may be mutually agreed upon by the parties in writing (the “Purchase Price”). Customer acknowledges and agrees that the Company’s price list does not constitute an offer to sell at the prices set out therein. Notwithstanding the foregoing, the Company reserves the right to increase the Purchase Price to reflect increased costs of transportation, materials, insurance, taxes, duties, foreign exchange rates and other costs or expenses of the Company. The Company reserves the right to apply a minimum charge on small value orders.
5.2 All prices quoted are exclusive of taxes unless otherwise stated and the Customer shall pay any and all sales or transaction or Value Added taxes, duties and other government fees or charges (including, without limitation, import and customs duties) (collectively, “Taxes”) that are imposed upon any of the Goods or Services furnished under this Contract. Unless otherwise expressly stated in the Quotation, the price and any Quotation do not include such Taxes.
5.3 The Customer shall pay to the Company, all reasonable charges incurred in respect of the delivery of the Goods to the Customer, including, without limitation, any and all charges for storage, forwarding and carriage pursuant to Section 6.2.
5.4 Packaging materials provided with the Goods are to be disposed of by the Customer and are non-returnable.
6.1 While the Company will use all reasonable endeavours to avoid, and to give the Customer sufficient notice of, any delay in delivery on the notified delivery dates, failure to deliver by a specified date will not be sufficient cause for cancellation, nor will the Company be liable for any direct, indirect, consequential or economic loss or damage due to delay in delivery however caused. Where delivery is to be made by instalments, delay in delivering one instalment shall not entitle the Customer to refuse to accept the remaining instalments.
6.2 Unless otherwise agreed in writing by the Company, all deliveries will be CIP at the applicable delivery location(s) specified in the Quotation or Purchase Order, as applicable. The Customer will be responsible for transit insurance and freight charges. The Company will prepay and invoice Customer for transit insurance and freight. Payment of such invoice will be due within thirty (30) days after the date of such invoice. Risk of loss to all Goods will pass to Customer upon delivery by Company to the specified delivery location(s) or, as may be applicable, upon release to the freight company charged with delivery (i.e., should the parties agree to an origin-oriented shipping term, such as FCA Company’s Factory).
6.3 Any damage to the Goods in transit or claims for shortage should be notified to the carrier and the Company promptly following receipt at the Customer’s premises or port of entry as the case may be.
6.4 The Customer shall not be entitled unreasonably to delay delivery or refuse to accept delivery of any Goods or Services. If the Customer fails to give the Company adequate instructions or fails to comply with the provisions of these Conditions relating to health and safety or fails to accept delivery of the Goods within a reasonable period after receiving notice from the Company that they are ready for delivery, the Company may dispose of the Goods, store them at the Customer’s expense or otherwise deal with the Goods in any way it thinks fit.
6.5 The Customer shall promptly notify the Company in writing in the event the Goods do not arrive within five working days of their anticipated receipt.
6.6 The Customer warrants to the Company that the site where it intends to use or take delivery of the Goods or where Services are performed is licensed in accordance with any relevant local regulations and that equipment has been sterilised to the required level of safety for engineering requirements.
6.7 The Customer shall ensure that adequate and safe facilities and procedures exist at its premises and that the Company is properly notified in advance of any relevant regulations or statutory requirements that affect such premises; and that the Company is notified in advance of any relevant national or international regulations consents or statutory requirements it has to comply with. The Customer shall comply with all relevant regulations and provide all necessary licences and certificates.
6.8 Where the Company is to provide Goods or perform Services, it is the duty of the Customer to ensure that the specification of the Goods purchased hereunder is suitable and safe for the intended use or environment of use; that the Goods are handled in a suitable and safe manner and are applied and installed in accordance with the Company’s application and installation instructions; and that all relevant safety information relating to Goods or Services is passed on to the Company and to other users (including purchasers and users of other goods and equipment into which the Goods are incorporated).
6.9 If the Contract is an international supply contract, it shall be deemed to incorporate the latest edition of Incoterms current at the date of Contract, save that in the event of any inconsistency between Incoterms and any express terms of the Contract, the latter shall prevail.
7.1 Unless otherwise agreed in writing by the Company (and as indicated on the invoice, accordingly) the following payment terms shall apply: Payment in full is due net thirty (30) days following the date of Company’s invoice, inclusive of any applicable Taxes and freight charges (if the Company is to add freight charges to the invoice), unless alternative payment terms for Goods have been agreed in writing by the Company and are quoted on the Company’s invoice. For avoidance of doubt, any different payment terms stated on the Customer’s Purchase Order shall be disregarded as not applicable.
7.2 The Company is entitled to charge the Customer interest on any part of the Contract price not paid by the due date until full payment is made at the rate of 3% per annum or the highest amount allowed by law, whichever is lower.
7.3 In the event of late payment by the Customer the Company reserves the right to suspend deliveries and/or cancel or suspend any outstanding contractual obligations.
7.4 The Customer shall have no right to set off any amounts owing to or alleged to be owing to it by the Company against unpaid amounts due to the Company.
8 Warranty and Limitation of Liability
8.1 Subject to the Customer’s compliance with the Contract, the Goods and Software are warranted from the date of shipment to be free of defects in workmanship or materials under normal usage for a period of one year. All claims for breach of the foregoing warranty shall be deemed waived in the event the Customer fails to notify the Company of such breach in writing within such period. The foregoing warranty shall also extend to any computers, printers, laptops or other third party accessories or other goods which may be provided by Company along with the Goods but which are not manufactured by the Company (provided that Company has not customized the Goods for Customer) (“Third Party Goods”) . The Company’s sole liability and Customer’s exclusive remedy for breach of the limited warranty for Goods, Third Party Goods and/or Software limited to replacement or refund at the sole option of the Company.
8.2 The Company warrants that all Services will be carried out with reasonable care and skill. The Company’s sole liability for breach of this warranty shall be at its option to give credit for or reperform the Services in question. This warranty shall only extend for a period of thirty days after the completion of the applicable Services.
8.3 Nothing in the Contract shall confer any right upon the Customer to return the Goods or to refuse or delay payment for Goods and Services.
8.4 The above limited warranties in Sections 8.1 and 8.2 are given by the Company subject to the following conditions:
8.4.1 the Customer shall give written notice to the Company within seven days of the discovery of the defect. If the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods, Third Party Goods and/or Software and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered and/or the Services provided in accordance with the Contract.
8.4.2 the Company shall be under no liability in respect of any defect in the Goods, Third Party Goods and/or Software or their design arising from any drawing, design or specification supplied by the Customer or any customization requested by Customer;
8.4.3 the Company shall be under no liability in respect of any defect arising from normal wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), or misuse or alteration or repair of the Goods, Third Party Goods and/or Software without the Company’s prior written approval;
8.4.4 the Company shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price for the Goods and/or Services have not been paid by the due date for payment;
8.4.5 except as otherwise provided in this Section 8, the above warranties do not extend to parts, materials or equipment not manufactured or supplied by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
8.4.6 the above warranties do not extend to any Third Party Software (defined at Section 14.1 below) which may be provided by Company along with the Goods or Third Party Goods (e.g., Microsoft software included in a laptop provided by Company). Such Third Party Software is instead covered by such warranty as may be provided (if any) by the original software developer.
8.5 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS (EXCEPT WHERE THE GOODS ARE SOLD TO A PERSON DEALING AS A CONSUMER WITHIN THE MEANING OF THE ‘UNFAIR CONTRACT TERMS ACT OF 197),, THE EXPRESS WARRANTIES SET FORTH IN THIS CONTRACT ARE IN LIEU OF ALL OTHER WARRANTIES ON THE PART OF THE COMPANY ARISING OUT OF OR IN CONNECTION WITH OR RELATING TO THE USE AND THE PERFORMANCE OF, AND THE RESULTS GENERATED BY, THE GOODS AND SERVICES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS CONTRACT, COMPANY MAKES AND CUSTOMER RECEIVES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.6 EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR RELATED TO THIS CONTRACT, HOWEVER CAUSED AND IN ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES CAUSED BY EITHER PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN EXCESS OF THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS CONTRACT.
8.7 Because of the inherent susceptibility of most biochemicals to deterioration, all warranty claims on any Goods that are subject to such deterioration must be made as soon as possible and in any event within seven days of receipt of such Goods by the Customer; all claims shall be deemed waived in the event the Customer fails to notify the Company within such period. The Company’s sole liability and Customer’s exclusive remedy for a breach of this warranty is limited to replacement or refund of such Goods at the sole option of the Company.
9 Force Majeure
9.1 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
9.1.1 Act of God, explosion, natural catastrophe flood, tempest, fire or accident;
9.1.2 war or threat of war, blockade, sabotage, insurrection, riot, civil disturbance or requisition;
9.1.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary port, international or local authority;
9.1.4 import or export regulations or embargoes;
9.1.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
9.1.6 difficulties in obtaining raw materials, labour, transportation, fuel, parts or machinery;
9.1.7 power failure or breakdown in machinery computer or other equipment failure.
10 Risk and Title
10.1 Pursuant to Section 6, risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery (or when released to the freight carrier in case of any origin shipping term such as FCA Company’s Factory)or, if the Customer fails to take delivery of the Goods or if any of the circumstances described in Section 6.4 arise, the time when the Company has tendered delivery of the Goods.
10.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, the title to the Goods shall not pass to the Customer until the Company has received in cash or in cleared funds payment in full of the price of all Goods for which payment is due.
10.3 Until title to the goods pass to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property, but the Customer shall be entitled to use the Goods in the ordinary course of its business.
10.4 Until such time as the title to the Goods passes to the Customer, the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
10.5 The Customer shall not be entitled to pledge or in any way charge by way of any security for any indebtedness any of the Goods which remain the property of the Company but if the Customer does so all sums owing to the Company from the Customer shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
In the event that:
11.1 any sum payable under the Contract is not paid by the Customer within 7 days of its due date;
11.2 the Customer fails to remedy a breach which is capable of being remedied or persists in any breach of its obligations under the contract (other than the obligation to make payment) after having been notified in writing by the Company to remedy or desist from such breach, within a period of 30 days after such notice;
11.3 the Customer has any voluntary or involuntary petition in bankruptcy filed by or against it, enters into an assignment for the benefit of its creditors, or dissolves, liquidates or enters into an a sale of all or substantially all of its assets, which condition is not remedied within 7 days of it being initiated, or the Customer is involved in any legal proceedings in which its insolvency is involved; or
11.4 the Customer ceases or threatens to cease trade or if serious doubt arises as to the Customer’s solvency or a petition to wind up the Customer is presented or an administrator or receiver appointed to any part of the Customer’s business.
then the Company shall be entitled without prejudice to its other rights under the Contract to suspend further performance of the Contract until the default has been made good or terminate the Contract immediately upon written notice. In addition, in the event of any insolvency or bankruptcy or threatened insolvency or bankruptcy of Customer, the Company’s representatives will have the right to enter the premises of the Customer with such transportation as may be necessary and repossess any of the Goods for which any payment has not been made. Notwithstanding such termination, the Customer shall pay the Company for any Goods and/or Services supplied up to and including the date of termination.
12 Intellectual Property
12.1 Except for the license rights set forth in Section 14 below, all patent, copyright, design, trade mark, trade secret or other industrial or intellectual property rights (collectively, “Intellectual Property Rights”) in the Goods and Software are and shall remain vested in the Company and/or its third party licensors and nothing in this Contract shall be construed as granting to the Customer any licence rights not expressly stated in this Contract or any right of manufacture of the Goods. Except as otherwise provided in connection with a permitted assignment of this Contract pursuant to Section 15.11, Customer shall not sell, license, sublicense, rent, lease or otherwise transfer or assign the Software or Third Party Software to any third party.
12.2 Where the Customer supplies designs, drawings and/or specifications (collectively, “Specifications”) to the Company to enable it to manufacture non-standard or custom made Goods or Software, the Customer shall be solely responsible for the suitability and accuracy of the Specifications and represents and warrants that the Specifications and use thereof by Company do not, to the best of its knowledge and belief, infringe on any Intellectual Property Rights of any third party.
12.3 The Customer will not use any trademarks or trade names applied by the Company to the Goods nor to do or permit anything whereby the goodwill and reputation of such trademarks or trade names is prejudiced or damaged.
12.4 All Intellectual Property Rights in the Goods and Software and any information which the Company may provide to the Customer or its agents in relation to the Goods, Software and/or Services shall (as between the parties) at all times remain with the Company and the Customer will keep such materials and information confidential and will not copy, reverse engineer or imitate the Goods or Software or use them in any manner not permitted herein.
12.5 The Company represents and warrants that the Goods sold and Software licensed hereunder, the use of such Goods by Customer as contemplated under this Contract, and the use of such Software by Customer in the manner permitted under this Contract do not, to the best of its knowledge and belief, infringe on any Intellectual Property Rights of any third party.
13 General Indemnities
13.1 The Customer shall defend, hold harmless and indemnify the Company and its officers, directors, employees, and agents (the “Company Indemnitees”) in respect of any claims, demands, costs, damages, settlements and liabilities (including all reasonable attorneys' fees and court costs) (collectively, “Losses”) which may arise out of or result from (i) any breach of the duty contained in any Condition relating to health and safety; (ii) any claim that the Specifications provided by Customer infringe the Intellectual Property Rights of any third party; or (iii) any claim arising out of Customer’s breach of this Contract.
13.2 The Company shall defend, hold harmless and indemnify the Customer and its officers, directors, employees, and agents (the "Customer Indemnitees") in respect of any Losses which may arise out of or result from any third party claim alleging that the Goods or Software infringe the Intellectual Property Rights of any third party; provided, however, that this indemnification is conditioned upon: (i) the Customer providing the Company with prompt written notice of any such claim; (ii) the Company having sole control and authority with respect to the defense or settlement of any such claim; and (iii) the Customer cooperating fully with the Company, at the Company’s sole cost and expense, in the defense of any such claim. The Customer may participate in the defense of any claim through its own counsel, and at its own expense. Notwithstanding the foregoing, the Company shall not be obligated to indemnify the Customer Indemnitees for third-party claims that arise from: (i) any combination of the Goods or Software with goods or software not supplied by the Company, where such infringement would not have occurred but for such combination; (ii) the adaptation or modification of the Goods or Software, where such infringement would not have occurred but for such adaptation or modification; (iii) the use of the Goods in any manner not contemplated under this Contract or the use of the Software in any manner not permitted under this Contract; or (iv) a claim based on Intellectual Property Rights owned by the Customer or any of its affiliates. In the event that the Company is not required to indemnify the Customer for a claim pursuant to subsections (i), (ii), (iii) or (iv) above, the Customer agrees to indemnify, defend and hold harmless the Company Indemnitees from and against any Losses arising directly or indirectly out of such claims.
13.3 In the event that any Goods or Software are held in a suit or proceeding to infringe any Intellectual Property Rights of a third party and the use of such Goods or Software are enjoined, or the Company reasonably believes that such Goods or Software are likely to be found to infringe, or likely to be enjoined, then the Company may, at its sole cost and expense, and at its option, either (i) procure for the Customer the right to continue using the applicable Goods and/or Software, (ii) modify such Goods and/or Software so that they become non-infringing or no longer constitute a misappropriation, without affecting the basic functionality of such Goods or Software; provided, however, that if (i) and (ii) are not practicable, the Company shall have the right , in its sole discretion, to repurchase the Goods or Software which the Customer purchased from the Company and which are unaltered and in saleable condition, at the price which the Customer paid the Company for such Goods and/or Software.
13.4 In the event a claim is based partially on an indemnified claim described in Sections 13.1 or 13.2 above and partially on a non-indemnified claim, or is based partially on a claim indemnified by one party and partially on a claim indemnified by the other party pursuant to Sections 13.1 or 13.2 above, any payments and reasonable attorney fees incurred in connection with such claims are to be apportioned between the parties in accordance with the degree of cause attributable to each party.
14 Computer Programme Licence
14.1 In the event the Goods include any embedded or other computer software developed by the Company (the “Software”), the Customer and any users authorised by the Customer are hereby granted a non exclusive, non-transferable fully paid-up right and licence to use the Software only in connection with the Customer’s use of the Goods supplied by the Company and to make a single copy of the Software for back-up purposes. The term “Software” does not include any software developed by a third party (“Third Party Software”), which is instead covered by such license as may be provided by the original software developer. The Software is supplied only in machine-readable object code form and is proprietary confidential information of the Company. No rights are granted under this Contract or otherwise to disassemble, decompile, produce humanly readable copies of, reverse engineer, modify or create any derivative works based upon the Software or in any manner to attempt to derive source code from the Software or the Goods (including chipsets and ROM therein). The foregoing licence will automatically terminate in the event that the Customer attempts to use the Software in any manner that is contrary to this Section 14. Except as otherwise provided herein, all other terms and conditions of the Contract shall apply to the licensed Software.
15.1 The Customer shall not advertise the Goods or exhibit the Goods at any show, display or exhibition other than on the Customer’s own premises, or enter the Goods for an event without the Company’s written approval first being obtained.
15.2 No waiver by the Company of any breach or failure to enforce any rights under the Contract shall be considered as a waiver of any right to enforce or subsequent breach of the same or any other provision.
15.3 If any provision of the Contract is held by any court of competent jurisdiction to be invalid or unenforceable in whole or in part, that provision shall be deemed restated, to the extent permissible in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
15.4 The Contract shall be governed by the laws of England (without reference to its choice of law rules), and the Customer agrees to submit to the exclusive jurisdiction of the English courts.
15.5 Any notice to be given by either party to the other under the Contract shall be in writing and mailed by certified or registered mail, delivered by express courier or hand delivered to such party to the address of the other party specified on the Quotation or such other address as may be designated by the receiving party by providing notice to the other party pursuant to this Section 15.5. Notice shall not be served by email or fax. Such notice shall be deemed to have been given upon receipt or refusal.
15.6 The Company is part of the Molecular Devices group and it may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of the group. If does this, any act or omission of that group company will be treated as an act or omission of the Company.
15.7 The Customer may order consumable goods (“Additional Products”) at the price(s) quoted in the Quotation by submitting to the Company additional written request(s) containing a description of the Additional Products being ordered and specifying quantity, delivery location and requested delivery dates. Unless otherwise agreed upon by the parties and specified in writing in the Quotation, these Conditions apply to any Additional Products ordered by Customer and delivered by the Company. The Company may in its absolute discretion agree in writing to the return of any surplus Additional Products ordered by Customer and, upon their safe return to Company in their original packaging, issue a credit to the Customer. Customer agrees to pay all associated freight charges and a restocking charge associated with such return(s).
15.8 This Contract constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes any and all prior agreements, communications and understandings regarding such subject matter, whether oral or written. This Contract may not be modified except by written agreement executed by an authorized representative of each party.
15.9 All headings contained in the Contract are inserted for convenience only and are not intended to affect the meaning or interpretation of the Contract or any clause.
15.10 This Contract may be executed in one or more counterparts, each of which will constitute an original and all of which taken together will constitute one and the same Contract. A facsimile copy of a signature will be deemed on original signature.
15.11 This Contract and the rights and obligations under it are not assignable by either party without the prior written approval of the other party. Notwithstanding the foregoing, either party may assign this Contract, or any of its rights or obligations under this Contract, without the other party’s approval pursuant to merger, consolidation, or change of control or corporate reorganization upon notice to the other party. Subject to the foregoing, this Contract will bind and inure to the benefit of each party’s successors and permitted assigns.
15.12 Sections 2.5, 4, 6.6, 6.7, 6.8, 8, 10, 11 (as may be applicable), 12, 13, 14 and 15 of these Conditions shall survive any expiration or termination hereof.
15.13 The relationship of the parties is and at all times shall be that of independent contractors. Neither this Contract nor the cooperation of the parties contemplated under this Contract will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the dates listed below.
Molecular Devices Ltd