Lab21 Ltd and Lab21 Healthcare Limited Terms and Conditions of Sale of Products

(1) General

Lab21 Limited and Lab21 Healthcare Ltd (“the Seller”) shall sell and its customer (“the Customer”) shall purchase goods  (“the Goods”) in accordance with any quotation of the Company which is accepted by the Customer or any order of the Customer which is accepted by the Seller, subject in either case to these conditions. These conditions shall govern the contract to the exclusion of any other terms and conditions and shall be binding unless otherwise agreed in writing between the authorised representatives of the Seller and the Customer.

(2) Orders

The Customer shall be responsible to the Seller for ensuring the accuracy of the terms or specifications of the order submitted by the Customer and for giving the Seller the necessary information or specifications relating to the Goods, within sufficient time, to enable the Seller to perform the contract in accordance with its terms.

(3) Changes

Orders arising hereunder may be changed or amended only by written agreement signed by both the Customer and the Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.

The Customer may not cancel an order unless the Seller expressly agrees to such a cancellation in writing.  In such an event, the Seller will advise the Customer of the total charge for such cancellation and the Customer agrees to pay such charges. These may include, but not be limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on the Seller by its suppliers and any other costs resulting from cancellation of this order to the Customer which are permitted by the Seller.  Certification of such costs by the Seller’s independent public accountants shall be conclusive on the parties hereto.

(4) Delivery, Claims, Delays.

a) The Seller reserves the right to make delivery in instalments. All such instalments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of, or any other breach affecting any instalment shall not relieve the Customer or Customer’s obligations to accept remaining deliveries.

b) Immediately upon the Customer’s receipt of any products delivered hereunder, the Customer shall inspect the same and shall notify the Seller in writing of any claims for shortages, defects or damages and shall hold the products pending the Seller’s written instructions concerning disposition. If the Customer shall fail to so notify the Seller within five days of the products having been received by the Customer, such products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Customer.

c) Although the Seller shall use all reasonable efforts to meet the contracted delivery date, such date is an estimate only and accordingly time for delivery shall not be of the essence. The Seller shall not be liable in any circumstances for loss, whether direct or consequential, arising from delay in delivery. Acceptance and completion of orders are subject to the Seller being in possession of all requisite consents, licences, authorisations and approvals required for the purpose of the supply of the products by the Seller to the Customer. In the event of the Seller at any time failing to be in possession of such consents, licences, authorisations and approvals it shall be entitled to cancel the contract by written notice to the Customer without any liability on the part of the Seller. The Seller shall not be liable for any loss, damage or penalty as a result of any delay in, or failure to, manufacture, deliver or otherwise perform hereunder due to any cause beyond the Sellers’ reasonable control, including, without limitation, unsuccessful reactions, act of the Customer, embargo or other governmental act, regulation or request affecting the conduct of the Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labour difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labour, fuel, materials, supplies or power at current prices.

(5) Payment

Unless special terms have been agreed in writing the Customer shall pay the price of the Goods (less any discount to which the Customer is entitled), but without any other deduction, within 30 days of the date of the invoice and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer.  The time for payment of the price shall be of the essence of the contract.  No discount for early settlement shall be allowed unless specifically agreed in writing by the Seller. If the Customer fails to make payment on the due date then, without prejudice, to any other right or remedy available to the Seller, the Seller shall be entitled to:

a) Cancel the contract or suspend any further deliveries to the Customer.

b) Appropriate any payment by the Customer to such of the Goods (or the Goods supplied under any other contract between the Customer and the Seller), as the Seller may think fit (notwithstanding any purported appropriation by the Customer).

(6) Title

Property in the Goods shall not pass to the Customer until the Seller shall have received in cash or cleared funds payment in full for the price of the Goods and all other Goods agreed to be sold by the Seller to the Customer for which payment is then outstanding (whether or not due). Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Sellers 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 Seller’s property, but the Customer shall be entitled to resell or use the Goods in the ordinary course of business.

(7) Warranties and Liability

The Seller warrants that his products shall conform to the description of such products as provided to the Customer by the Seller in the Seller’s catalogue, analytical data or other literature. This warranty is in substitution for and (to the extent permitted by English Law) excludes all conditions and warranties as to merchantable quality or fitness for any particular purpose whether express or implied by statute, common law or otherwise.  The Seller shall not be liable under this warranty in the event that the Seller determines, in its sole discretion, that the Customer has mis-used the products in any manner, has failed to use the products in accordance with industry standards and practices or has failed to use the products in accordance with instructions, if any, furnished by the Seller. There are no representations, agreements, promises or understandings between the Customer and the Seller that are not expressed herein and the Seller shall not be liable to the Customer in respect of any such matters.

The Seller’s sole and exclusive liability and the Customers exclusive remedy with respect to products proved to the Seller’s satisfaction to be defective or non-conforming shall be replacement of such products without charge or refund of the purchase price, in the Seller’s sole discretion, upon the return of such products in accordance with the Seller’s instructions.  The Seller shall not in any event be liable for direct, indirect, incidental, consequential or special damages of any kind resulting from any use or failure of the products, even if the Seller has been advised of the possibility of such damage including, without limitations, liability for loss of use, loss of work in progress, down time, loss of revenue or profits, failure to realise savings, loss of products of the Customer or other use or any liability of the Customer to a third party on account of such loss or for any labour or any other expense or for any damage or loss occasioned by such product including death, personal injury or property damage unless such death, personal injury or property damage is caused by the Seller’s negligence.  All claims (other than in respect of those for death or personal injury caused by the Seller’s negligence) must be brought within one (1) year of delivery, regardless of their nature.

(8) Intellectual property disclaimer

The Seller will accept no liability (to the extent permitted by English law) for any claims made against the Customer for any infringement of patent rights, of registered or unregistered trade marks (including any copyright therein), or of registered or unregistered designs or copyright involved in the use, or re-sale or offering for re-sale of the products either as originally sold by the Seller or otherwise, including without limitation, their use in combination with other products or any operation of any process.

(9) Force Majeure

The Seller shall not be liable to the Customer or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control.

(10) Governing Law

English Law shall govern these conditions and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.