(A) The Company named on the above quotation has agreed to supply the Buyer with the Product for testing purposes only on the terms and conditions contained in this agreement.
The definitions and rules of interpretation in this clause apply in this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Product: the prototype jetting array agreed to be supplied by the Company to the Buyer for testing purposes only.
Force Majeure Event: has the meaning given in clause 10.
Intellectual Property: patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), semiconductor topography rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
2. Except where a contrary intention appears, a reference to a clause is a reference to a clause of this agreement.
3. Clause headings do not affect the interpretation of this agreement.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. A reference to a party is to a party to this agreement.
6. A person includes a corporate or unincorporated body.
2. Supply of product
2.1 On the terms of this agreement, the Company shall supply the Buyer with the Product.
2.2 The Buyer shall use the product for laboratory research and evaluation purposes only and not for any commercial purposes.
3.1 The Buyer shall collect the Product from such location as the Company advises the Buyer prior to delivery (Delivery Location) within 3 Business Days of the Company notifying the Buyer that the Product is ready for collection.
3.2 Delivery of the Product shall be completed on the completion of loading of the Product at the Delivery Location.
3.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Product that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with any instructions that are relevant to the supply of the Product.
3.4 If the Buyer fails to take delivery of the Product within 3 Business Days of the Company notifying the Buyer that the Product is ready, then, except where such failure or delay is caused by a Force Majeure Event:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 3rd Business Day after the day on which the Company notified the Buyer that the Product was ready; and
(b) the Company shall store the Product until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
4.1 The Company makes no warranties as to the quality or performance of the Product, nor does it make any warranties that the Product complies with any local, national or any other applicable regulations relating to the Buyer.
4.2 The Company shall have no liability in respect of any loss suffered by the Buyer due to the Product failing to comply with any regulations as set out in clause 4.1 above.
5. Title and risk
5.1 The risk in the Product shall pass to the Buyer on completion of delivery.
5.2 Title to Products shall not pass to the Buyer until the Company receives payment in full (in cash or cleared funds) for the Product.
5.3 Notwithstanding the provisions of clause 5.2 above, the Buyer shall have no right to re-sell or use the Product other than for laboratory research and evaluation purposes only.
6. Price and payment
6.1 The Buyer shall pay the Company the price as agreed plus VAT (where applicable) for the Product. 50% payment is due upon placement of order. 50% balance due upon shipment. For the avoidance of doubt, the Buyer is not purchasing the Product from the Company other than for laboratory research and evaluation purposes only.
6.2 The price of the Product set out in clause 6.1 above is exclusive of the costs and charges of packaging, insurance and transport of the Product, which shall be borne in full by the Buyer.
6.3 All payments to be made to the Company under this agreement shall be made in pound sterling by electronic transfer of immediately available funds to the Company to such bank account as the Company shall notify the Buyer.
6.4 All costs to exchange currency and other bank charges that arise are to be paid by the Buyer.
7. Intellectual property rights
7.1 The Company shall at all times retain ownership of all Intellectual Property rights in the Product.
7.2 The Buyer hereby assigns to the Company, with full title guarantee, all rights in and to any Intellectual Property created or arising from the research in direct relation to the Jetronica hardware and software for the full duration of such rights, wherever in the world enforceable. The Buyer agrees to execute all documents and assignments and do all such things as may be necessary to perfect the Company's title to the Intellectual Property or to register the Company as owner of registrable rights.
7.3 The Buyer shall indemnify the Company against all losses, damages, liabilities and expenses (including legal expenses) incurred by the Company as a result of any claim that the use of the Intellectual Property created or arising from the research infringes any Intellectual Property belonging to a third party.
8.1 The Buyer shall:
(a) keep confidential all Intellectual Property and know-how, including confidential commercial and financial information, disclosed by the Company to the Buyer during the course of the research and of this agreement;
(b) not disclose to third parties without the express prior written consent of the Company the results of work performed as part of the research;
(c) ensure that no publication of work connected with the research occurs without the express prior written consent of the Company; and
(d) disclose know-how, and any other confidential information of the Company which is provided by the Company to the Buyer for the purposes of the research, only to those persons necessary for the purposes of the research and only to the extent necessary for the proper performance of their duties.
8.2 The Buyer shall procure that the obligations in clause 8.1 are observed by its employees, officers and agents and by any other party retained by the Buyer.
8.3 The Buyer shall notify the Company immediately if it becomes aware of any disclosure in breach of the obligations in this clause 8. At the request of the Company, the Buyer will take all such steps as are necessary to prevent further disclosure.
8.4 The provisions of this clause 8 shall not apply to:
(a) any information which is in the public domain at the date of this agreement or which subsequently comes into the public domain other than by breach of this agreement or any other confidentiality agreement; or
(b) any information already in the possession of the Buyer at the date of this agreement, other than under an obligation of confidentiality; or
(c) any information obtained without any obligation of confidence from a third party that is not in breach of a confidentiality agreement with the Company concerning the information obtained.
8.5 The provisions of this clause 8 shall remain in full force and effect without limit of period.
9. Term and termination
9.2 This agreement shall commence on the date of this agreement and the provisions of clause 7 and clause 8 shall continue without limit in time.
10. Force majeure event
10.1 Neither party shall be liable for any failure or delay in performing its obligations under this agreement to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means 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 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, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 The Buyer 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 this agreement without the prior written consent of the Company.
12. No partnership or agency
12.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by airmail or by reputable international overnight courier (if the notice is to be served by post to an address outside the country from which it is sent.
13.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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 or at the time recorded by the delivery service;
(c) if sent by pre-paid airmail to an address outside the country from which it is sent, at 9.00 am on the fifth Business Day after posting;
(d) if sent by reputable international overnight courier to an address outside the country from which it is sent, on signature of a delivery receipt or at the time the notice is left at the address;
(e) if deemed receipt under the previous paragraphs of this clause 13.3 would occur outside business hours (meaning 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), at 9.00 am on the day when business next starts in the place of deemed receipt. For the purposes of this clause, all references to time are to local time in the place of deemed receipt.
13.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include e-mail.
14.1 Any variation of or amendment to this agreement shall only be effective if it is in writing and signed by both parties.
15.1 No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
16.1 If any provision or part-provision of this agreement 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 this agreement.
16.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. Entire agreement
17.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17.4 Nothing in this clause shall limit or exclude any liability for fraud.
Provisions of this agreement which are either expressed to survive its termination or, from their nature or context, are apparently intended to survive such termination shall remain in full force and effect notwithstanding termination.
19. Further assurance
Each party shall and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
20. Third party rights
No term of this agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
21. Governing law
This agreement 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.
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 agreement or its subject matter or formation (including non-contractual disputes or claims).