Article 1 Ge neral
1.1 These Ge nera l Te rms And C onditions of Sale ( "T erms")
sha ll govern a ll orde rs place d with Opiconsivia I nvestm ents 19
(Proprie tar y)
Limited
("OI")
wher eby
a
customer
("Custome r") obta ins products ("Pr oduc ts"), whe ther
unm odified or customised and/or assoc iated service s
("Services") from OI.
1.2 A quotation by OI to a Customer shall not constitute an
offer.
1.3 A C ontract ("Contract" ) shall be formed a t OI 's sole
discretion whe n OI a ccepts 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, unless OI agrees otherwise in
writing.
1.5 OI ma y c ha nge P roduct and Servic es 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 a mount invoiced, without se t-off or
counterclaim, within 30 (thirty) days of the da te of OI’s invoice.
Payme nt shall be ma de in the curre ncy a nd to the account state d
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,
OI ma y de mand full or par tial payment or the appropria te
security for payment from C ustomer, in a form a ccepta ble to OI.
2.3 For pa yme nts pa st due, OI may cha rge Customer interest at
the ma ximum per mitted lawful rate . Customer shall indemnify
OI a ga inst any reasonable c osts inc urred by OI or its agent in
recovering outstanding a mounts.
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 OI, OI may (a) tre at any Contract a s repudia ted 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 r equired by OI ; or (iv) a receiver or
administrative receive r is appointed ove r any of Customer ’s
assets.
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”). Customer 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
OI, by Customer, or by both, suc h rights shall immediate ly,
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 establish its rights under this Ar ticle 4.2. Customer
acknowledges and agrees that AB Scie x or one of its a ffilia tes,
as applica ble is a third party beneficia ry of all Contra cts with
respect to IPR.
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 OI and shall not disc lose such informa tion to third parties
without express wr itte n pe rmission from OI. C ustome r shall not
use such information for any purposes other than those
contem plated under the Contr act, unless suc h information is or
becomes public knowledge (other than by breach of this
Article), is lawfully re ceived by Customer from a third party
having a right to disc lose such information, or disc losure is
required by a court of compe te nt jurisdiction.
Article 6 Forc e Majeure
6.1 OI shall not be liable to Customer 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 perform anc e of Ser vices that is
prevented, hindered, delaye d or rende red uneconom ic by e ve nts
beyond OI’s reasona ble c ontr ol (a n “e ve nt of force maje ure”) .
6.2 Any obligations of OI unde r a ny Contract will be suspende d
for the period of the eve nt of force majeure. If the e vent of
force ma je ure extends beyond 60 (sixty) days, either pa rty ma y
te rminate the Contrac t on immedia te notice without any lia bility
to the other, except that Customer shall rema in liable for
payment to OI for any Products delivered or Ser vices performe d
prior to termina tion.
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 de live ry or performa nce da tes quoted by OI are
approximate only. Unle ss e xpressly state d otherwise, OI 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 OI’s fa ult), in a ddition to the other rights and re medie s
available to OI, OI may (i) store Products and charge Customer
for the costs of stora ge , or (ii) upon reasonable notice to
Customer, sell Produc ts at the best pric e readily a vaila 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 OI until OI has rece ived full pa yme nt for the price of
such P roducts.
8.2 Until pa ym ent in full, C ustomer shall handle P roducts so a s
to enable them to be ide ntif ied as the property of OI a nd,
following delivery, sha ll at its own e xpense insure the m against
all c ustom ary risks.
8.3 In the event of any failure on the part of Custom er to pay OI,
OI reserves the imme diate r ight of repossession of a ny Produc ts,
and Customer hereby gra nts an irre vocable right to OI and its
employees, a gents or sub-contractors to enter upon any/all
premise s where Products are stored, without prior notice , for
this purpose. If P roducts delivere d by OI have already bee n
insta lled in or inte gra ted into C ustome r’s products, Customer
shall, a t OI’s request, disasse mble the installed or integrate d
items for retur n to OI. C ustome r shall bear all c osts incurred by
OI in connection with rec over y.
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 OI within 5 (five ) da ys of delivery, performance 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 gre ed in writing, OI war rants tha t the Products
(excluding software, non-durable Products having a life-span of
less tha n 12 (twe lve) months, and spare parts) sha ll perform
according to the published spec ifications applic able to eac h
Product whe n delivered for a pe riod of 12 ( twelve ) 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 OI sha ll be unde r no liability under the warra ntie s se t out in
this Artic le in respe ct of any non-compliance of the Products
arising from: (a ) e xterna l sources, suc h as short c irc uits,
incorrect volta ges, unfa vourable working environment, as well
as circ umstances attributable to Customer; (b) nor mal wea r and
te ar or abnormal usage; (c ) if the P roducts are sold to Customer
as used Produc ts; (d) parts which come into dire ct c ontact with
chemicals that have been used improper ly by the Customer; (e)
parts whic h are expressly e xc luded from the war ranty in the
manual, or protocol acc ompa nying the Products; (f) any re pa 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
OI; (g) the use or ma intena nce by C ustom er of the Products in
an inappropriate or improper manner, inc luding without
limita tion failure to follow instructions or operating guidelines;
(h) Customer fa ils to give notic e of any c laim in re spect of any
Products whic h is base d on a bre ach of the warranty above
within 7 (seve n) days of discovery of the breach; a nd ( i)
Products whic h m ust be insta lled by OI, wher e such Products
ha ve not be en installed by an OI ser vice engineer, unless OI ha s
indic ate d in writing that C ustomer is a uthorise d to insta ll the
Products itself.
10.3 Where a valid and time ly claim in respect of breac h of
Product wa rranty is submitted to OI, OI may, in its discr etion
repla ce, repair, or modify the Pr oduc ts free of charge, or refund
the e ntire price or applic able portion there of for such Produc ts,
but sha ll have no further liability to Custome r.
10.4 Any return of Products to OI in connection with a warranty
cla im can only be done upon OI’s prior written per mission and
instr uctions, with shipping costs to be paid by C ustome r. Suc h
retur ned P roducts shall at all times remain for the ac count and
risk of C ustom er.
10.5 Save as a fore sa id, all conditions, warranties and
representations, express or im plie d, whethe r by sta tute , common
law or otherwise in relation to the Products a nd S ervices (except
te rms implied as to title) are he reby expressly e xc lude d.
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 Te rms shall exclude or limit OI’ s liability
for death or persona l injury c aused by its ne gligence or any
other liability to the exte nt that the same may not be excluded or
limited by law.
11.2 Without prejudice to Article 11.1, OI shall be unde r no
liability by reason of any representation, warra nty, condition or
other term, e xpress or im plie d, by statute, common law or
otherwise or under the express or implied ter ms of a Contract,
for a ny direct or indire ct loss of: (i) profit, ( ii) data, (iii) income,
(iv) business, (v) revenue, (vi) goodwill, or any indirec t loss,
howsoe ver a rising and whethe r or not c aused by the ne glige nce
of OI, its employees or a ge nts.
11.3 Subject to Ar ticle 11. 1, OI’s ma ximum a ggregate lia bility
arising out of or in connection with a C ontract in tort, contrac t
or othe rwise shall at all times be limited to the a mount invoice d
under such Contra ct.
Article 12 Charges f or Installation Work
12.1 P roduct prices inc lude installa tion c osts, where applica ble.
Customer shall pay OI an a dditiona l rea sonable 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 e xpense s.
Article 13 Customer Obligations
13.1 Customer sha ll, at its c ost, provide OI , in a comprehensible
and usable form, all data and information known or reasonably
available to C ustomer that is nece ssary for OI to perform any
Contrac t.
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 OI.
13.3 C ustomer shall indemnify a nd ke ep inde mnified OI and its
affiliated c ompanies against all actions, losses, claims, dama ges,
costs or expenses inc urre d or suffe red by OI in connection with
any claim by a third pa rty that Custome r's use of the Products
and/or Se rvices infringes the intellectual property rights of any
kind whatsoever, including without limitation pa te nt, copyright,
or trade secret rights, of such third party, e xcept to the exte nt of
any pr oportiona l fault of OI’s P roducts or Servic es.
13.4 Customer understa nds and agrees tha t, whe re a pplicable f or
Products subject to individual labe l lic ense s, Customer's use of
eac h such Produc t is a nd will be regulate d by the terms stated on
the la be l license that accompanies each suc h Product.
Compliance with suc h labe l licenses sha ll be accepted by the
Customer as a pre condition to use of each P roduct.
Article 14 Miscellaneous
14.1 In re lation to a ny Contract, these Terms shall constitute the
entire agreeme nt betwe en OI a nd 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 shall be attributed to or implied by OI except 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 OI.
14.3 Failure by OI to exercise or e nforce 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 wr itte n consent of OI. OI ma y a ssign, novate, tra nsfer
or sub-contra ct a C ontract or a ny of its rights or obligations
there under.
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 the laws of England and
Customer hereby agrees that the South African courts shall
have exclusive jurisdiction over any Contract.
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