Article 1 Ge neral
1.1 These Ge nera l Te rms And C onditions of Sale ( "T erms")
sha ll govern all orde rs placed with AB S cie x Ire land Limite d
(“ABS ”) wher eby a c ustomer ("Custome r") obtains products
("Prod ucts"), whether unmodified or c ustomised a nd/or
associated services ("Se rvice s") from ABS.
1.2 A quotation by ABS to a Customer shall not constitute an
offer.
1.3 A Contra ct ("Contract") sha ll be forme d at ABS’s sole
discretion whe n ABS accepts a Customer's order, whether by
written notic e or by performa nce of the Contract, whichever is
earlier.
1.4 These Terms sha ll govern a Contra ct to the e xclusion of all
other terms and conditions, unle ss ABS agrees otherwise in
writing.
1.5 ABS m ay cha nge P roduct and Services spec ifications for
safety or other statutor y requireme nts without notice.
Article 2 Payment
2.1 Unless othe rwise agree d in writing, Customer sha ll make
payment in full of the amount invoiced, without set-off
deduction or counterc laim, within 30 (thirty) days of the date of
ABS’s invoice. Pa ym ent shall be made in the c urre nc y and to
the account sta ted on the invoice .
2.2 Whe re a Customer’s c redit sta nding changes prior to
delivery or collection of P roducts or per for mance of Se rvices,
ABS may at its sole discr etion de mand full or par tial payment
and/or the appropria te security for payment from Customer, in a
form a ccepta ble to ABS.
2.3 For payments pa st due, AB may c ha rge C ustomer intere st at
the maxim um rate perm itted by law. C ustomer shall indemnify
ABS against any re asonable costs inc ur red by ABS or its agent
in r ecove ring outstanding am ounts.
Article 3 Customer ’s Insolven cy and Br each
3.1 Without pre judice to any other rights and re medies a va ilable
to ABS, ABS ma y (a) treat a ny Contract as re pudiated a nd/or
suspend deliveries of Produc ts or per for mance of Servic es
without liability to C ustome r, (b) c laim dama ges from
Customer, a nd (c) accelerate and make immediate ly due the
payment of a ny outsta nding sums if Customer (i) makes any
voluntary arra ngeme nt with its c reditors or is subject to a n
administrative orde r, goes ba nkrupt or into liquidation, or
rece ives a petition for its compulsory winding up; ( ii) c eases, or
threa te ns to cease, to carr y on business; (iii) br eaches its
obligations under a C ontract and doe s not re medy such breac h
within the pe riod required by ABS; or (iv) a rece iver,
administrative rece iver, exa miner administrator or other similar
offic er is appointed ove r its underta king, proper ty or asse ts.
Article 4 Intellec tual Pr ope rty Rights
4.1 Customer acknowledges that all intellectua l pr operty rights
comprised in the P roducts a nd/or Services (inc luding without
limitation, any patent, de sign, copyright, trade mark, business
name, application to register any a forementioned right, tec hnic al
data , trade secret, unpa tented know-how, and any other
intellec tual property right of any na ture whatsoever in any pa rt
of the world -"IPR" ) are owned or lic ensed by AB Sciex Pte.
Ltd., a limited liability comp any or ganized und er t he laws of
Singap ore (“AB SCIEX”). C ustome r is author ised to use the
same only in c onnection with the use of Products pursua nt to a
Contrac t and Customer a gree s that it shall not infringe suc h IPR
or ac quire or obtain any right, title or inte rest therein.
4.2 I f, pursua nt to any Contrac t, a ny IPR in or rela ting to the
Products or Services a re developed, improved, or modifie d by
AB, by C ustomer , or by both, suc h rights shall immediately,
upon creation, vest in a nd be owned absolutely by AB Sciex or
one of its affiliates, as applicable. Customer hereby assigns any
and a ll its interests in suc h IPR to AB Scie x or one of its
affiliates, as applicable and sha ll com ply with a ll rea sonable
require ments to ena ble AB Sciex or one of its affiliates, as
applicable to e stablish its r ights under this Article 4.2.
Customer agrees and acknowle dges that the benefit of c ertain of
the pr ovisions of these Terms are expressed to be not only f or
AB, but also for AB Sciex or one of its affiliates, as applica ble.
Customer furthe r ac knowledges tha t AB Sciex or one of its
affiliates, as applicable shall be entitled in its own r ight to
require by Customer the due per for mance of eac h such
provision a s a fore sa id and to this e nd tha t ABS is ente ring into
any Contrac t not only in its own right, but a lso as trustee and
agent for AB Sc ie x or one of its affiliates, as applica ble.
4.3 With re spect to Products under this Contract which are
unm odified software, Customer rece ives a license to use suc h
software acc ording to the stric tly inte rpre ted scope of use
described in the docume ntation accompanying the softwa re,
which description of use Customer a cknowledges having
approved prior to re ceipt of the software .
Article 5 Conf id entiality
5.1 Customer shall kee p c onfide ntia l a ll inform ation receive d
from ABS and shall not disclose suc h information to third
parties without expre ss written permission f rom ABS.
Customer shall not use suc h infor mation for a ny purpose s other
than those contemplate d unde r the Contra ct, unless suc h
informa tion is or becomes public knowledge (other than by
breach of this Ar ticle ), is lawfully rec eived by Customer from a
third party having a right to disclose such information, or
disclosure is required by a court of compe tent jur isdiction.
Article 6 Forc e Majeure
6.1 AB S shall not be liable to C ustomer for any loss or dama ge
which Custome r may suffer a s a dire ct or indire ct result of the
supply of Produc ts or the performa nce of Services that is
preve nted, hindered, dela yed or rende red uneconomic by e ve nts
beyond ABS’s rea sona ble c ontrol (a n “event of force
maje ure”).
6.2 Any obligations of AB S unde r any Contract will be
suspe nded for the pe riod of the event of force majeure. If the
event of force majeure exte nds beyond 60 (sixty) da ys, either
party may terminate the C ontr act on imme diate notice without
any liability to the other, except that Customer shall re main
liable to pay ABS the price of any P roducts delivered or
Services performed prior to ter mination.
Artic le 7 Pric es and Delivery
7.1 Unless othe rwise provided, Produc ts shall be delivere d
Carr iage and I nsurance Paid To (Incoter ms 2000) (" CIP") to
Customer’s address, and the Product pr ice sha ll be CIP. All
price s quote d are exclusive of VAT and all other applic able
ta xes a nd duties, whic h shall be payable by C ustome r.
7.2 Any delivery or per for mance date s quoted by AB S are
approximate only. Unless expressly sta ted otherwise, ABS shall
not be liable for any delay in delivery of Products or
performance of Services.
7.3 If Customer fails to take de livery of Pr oducts ( othe r than due
to AB S’s fault), in addition to the other rights and remedie s
available to ABS, ABS may (i) store Products a nd c harge
Customer for the costs of storage, or (ii) upon reasonable notice
to Customer, sell Products at the best price readily availa ble and
charge C ustom er for any shortfall be low the C ontra ct pric e, plus
storage a nd selling c osts.
Artic le 8 Retention of Title and Risk
8.1 Notwithsta nding de live ry and the passing of risk in any
Products, title in the m shall not pass to C ustome r a nd shall
rema in in ABS until ABS has rece ived full pa ym ent for the
price of suc h Products.
8.2 Until pa ym ent in full, C ustomer shall handle P roducts so a s
to e nable them to be ide ntified a s the property of ABS a nd,
following delivery, sha ll at its own e xpense insure the m against
all c ustom ary risks.
8.3 In the e vent of a ny failure on the part of Customer to pa y
ABS, AB S reserves the im mediate r ight of repossession of any
Products, a nd Customer he reby gra nts an irre vocable right to
ABS and its em ployees, age nts or sub-contr actors to ente r upon
any/all premise s where Produc ts a re store d, without prior notice,
for this purpose. If Produc ts delivere d by AB have alre ady bee n
insta lled in or inte gra ted into C ustome r’s products, Customer
shall, a t ABS’s re quest, disassemble the installed or inte grate d
items for return to ABS. C ustom er shall bear all costs inc urre d
by ABS in connec tion with recovery. To the exte nt perm itte d
by law, Customer hereby gra nts to ABS a secur ity inte rest in
and to all Products he ld by C ustome r until suc h Produc ts are
fully paid.
Artic le 9 Inspe ction and Acce ptance
9.1 On deliver y of Pr oducts a nd on completion of performance
of Service s, C ustome r shall inspect the Products for defec ts and
defic iencies in Servic es.
9.2 Custome r shall report, in writing, any defects or def iciencie s
to AB within 5 (five) days of delive ry, perf or ma nc e or
completion (as the case may be) of each installment of Products
or Se rvices, failing which, C ustome r is deemed to have a ccepte d
the Products and/or Se rvices .
Artic le 10 Warranties
10.1 Subject to the limitations on its liability set out herein, and
unless otherwise a greed in writing, ABS warra nts tha t the
Products (e xc luding software, non-durable Products having a
life-span of less than 12 (twe lve) months, and spare parts) shall
perform a ccording to the published spe cifica tions applicable to
each Product when de livere d for a per iod of 12 (twe lve) months
following the date of accepta nc e or of installation ( if
applicable), but in no event for more than 15 (fifteen) months
from deliver y.
10.2 ABS shall be unde r no liability under the wa rranties set out
in this Article in re spect of any non-c om plianc e of the Products:
(a) caused by e xternal sources, such as short circ uits, incorrec t
volta ges, unfavourable working environment, as we ll a s
circumstances attributable to Customer; (b) a rising from norma l
wear and tear or abnormal usage; (c) if the Products are sold to
Customer a s used Products; (d); arising fr om parts which come
into direc t contact with c he mica ls that ha ve been use d
improperly by the Customer; (e) a rising from pa rts which are
expre ssly excluded fr om the warra nty in the ma nual, or protocol
accompanying the Products; (f) arising from any r epa irs,
modification or alte ration to the Products by or at the request of
Customer or a third pa rty, or the re moval or alte ration of any
tr ade ma rks or spe cifica tions, without written perm ission from
ABS; (g) arising from the use or maintenance by Customer of
the P roducts in an inappropriate or impr oper m anner, inc luding
without limitation failure to follow instructions or oper ating
guide line s; ( h) if Customer fails to give notice of any claim in
respect of any P roducts whic h is based on a breac h of the
warranty above within 7 (se ve n) days of discovery of the
breach; and ( i) for Produc ts which must be insta lled by ABS,
whe re such Products have not bee n installed by an AB S se rvice
engineer, unless ABS ha s indicated in wr iting that C ustome r is
authorised to insta ll the Produc ts itself.
10.3 Where a valid and time ly claim in respect of breac h of
Product warr anty is submitted to AB S, ABS ma y, in its
discretion r eplace , r epa ir, or modify the Products f ree of charge,
or refund the entire pr ice or a pplica ble portion thereof for such
Products, but shall ha ve no fur ther liability to Customer.
10.4 Any return of Products to AB S in connection with a
warranty claim can only be done upon ABS’s pr ior written
permission and instructions, with shipping costs to be paid by
Customer. Such re turned Products sha ll at a ll times rema in f or
the account a nd risk of Customer.
10.5 Sa ve as afore sa id, all conditions, warranties and
representations, express or implie d, whethe r by sta tute , common
la w or othe rwise in re lation to the Produc ts or Services (except
from te rms implied as to title under the S ale of Goods and
Supply of Ser vices Act 1980) are hereby expressly excluded.
10.6 All warranties under this Artic le run sole ly to the
Customer, are strictly non-transfe rable, and any attempt at
transfer sha ll automatically void the warra nty.
Article 11 Liability
11.1 Nothing in these Terms shall exc lude or limit ABS’ s
liability for de ath or per sonal injury cause d by its neglige nce or
any other lia bility to the exte nt tha t the sa me may not be
excluded or limited by la w.
11.2 Without prejudice to Artic le 11.1, AB Sshall be under no
liability by reason of any representation, warra nty, condition or
other te rm, e xpress or implied, by statute or otherwise, or under
the e xpress or implied te rms of a Contract, for a ny dire ct or
indir ect loss of: ( i) profit, (ii) data , (iii) income, (iv) busine ss,
(v) re venue, (vi) goodwill, or any indirect loss, howsoever
arising and whethe r or not ca used by the negligenc e of AB, its
employees or age nts.
11.3 Subjec t to Article 11.1, ABS’ s ma ximum aggre gate
liability a rising out of or in connection with a Contract in tort,
contract or otherwise shall at all time s be lim ited to the a mount
invoiced under such Contract.
Article 12 Charges f or Installation Work
12.1 P roduct prices inc lude installa tion c osts, where applica ble.
Customer shall pay ABS an additiona l re asonable a mount for
insta llation work performed beyond the norma l course,
including rea sonable fe es for servic es, reimbur se ment for travel
and ac commoda tion, c osts of third parties e mploye d for the
insta llation, and other out-of-pocket expenses. S uch fees or
costs shall not be incur red by ABS without first having bee n
sanc tioned by Customer .
Article 13 Customer Obligations
13.1 Customer sha ll, a t its cost, provide ABS, in a
comprehensible a nd usa ble form, all data a nd informa tion
known or reasonably available to C ustome r that is necessary f or
ABS to perform any Contract.
13.2 C ustomer is responsible for the use a nd correct applic ation
of the Products and the Se rvices and for the sec urity of the da ta
provided to ABS.
13.3 Customer shall inde mnify and ke ep indemnif ied ABS and
its affiliated companie s aga inst a ll actions, losses, cla ims,
damages, costs or expe nses incurred or suffered by ABS in
connection with a ny claim by a third party that Customer's use
of the Produc ts and/or Ser vices infr inges the intellectua l
property rights of such third party, e xce pt to the exte nt of any
proportiona l fault of ABS ’s Products or Se rvices.
13.4 Customer understa nds and agrees that certain Products m ay
also be subjec t to license te rms that a ccompany the Products and
acc ordingly that C ustome r's use of eac h such Pr oduct is and will
be regulated by the ter ms of the license that accompanies ea ch
suc h Produc t. C omplianc e with such license s sha ll be a ccepte d
by the C ustom er a s a precondition to use of each suc h P roduct.
Article 14 Miscellaneous
14.1 In re lation to a ny Contract, these Terms shall constitute the
entire agr eement betwee n ABS and C ustom er a nd supe rsede any
previous agreeme nt or arrange ment betwee n them relating to the
subje ct matte r of the C ontr act. No representation, underta king
or promise sha ll be attributed to or implie d by ABS e xce pt as
expr essly stated in these Terms.
14.2 No modific ation of, or a dditions to, the Terms shall be
va lid unless acce pted in wr iting by ABS.
14.3 Failure by ABS to exercise or enforce any rights he reunder
sha ll not be deem ed to be a wa iver of any suc h r ight or operate
so as to bar the exerc ise or enforce ment there of at any time or
time s therea fter.
14.4 If any provision or part of a provision of these Terms shall
be found by a ny court of c om petent jurisdic tion to be invalid or
unenforceable, such inva lidity or unenforc eability shall not
affec t the other provisions or parts of such provisions of the se
Terms, all of whic h shall rema in in full force and effect.
14.5 Customer m ay not assign, novate, transfe r or sub-contra ct
all or a ny of its rights or obliga tions unde r any Contract without
the prior written conse nt of ABS. AB S may assign, novate,
transfer or sub-contrac t a Contract or a ny of its r ights or
obligations ther eunder.
14.6 No person other than a par ty to the Contract or pe rson to
whom the C ontract has been a ssigned, transfe rred or subcontracted per Article 14.5, or AB S cie x or one of its a ffilia tes,
as applicable with respect to IPR, sha ll be entitle d to e nforce any
term of the C ontract.
Article 15 Ap plicable Law and Jurisdiction
15.1 All Contracts and these Terms will be governed by and
construed in accordance with Irish law and Customer
hereby agrees that the Irish courts shall have exclusive
jurisdiction over any Contract.
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