In these conditions of supply the following words will (unless the context otherwise requires) have the following meanings:
"Healthcare Customer Services Contact" means our customer services representatives on Tel: +44 (0)115 9739015. "Conditions" the conditions set out below and overleaf. "Contract" the contract between us and you for the supply of Services comprising these Conditions and any documents referred to in them. “Data Protection Legislation” the Data Protection Act 1998 and all subordinate legislation; “Cytology Specimen” means a human cervical smear preparation;“Favourable Test Outcome” means either of the following outcomes of the HPV Analysis undertaken by us:
“Laboratory” Source BioScience UK Limited’s laboratory at 1 Orchard Place, Nottingham Business Park, Nottingham NG8 6PX;“HPV Analysis” the laboratory testing for the purpose of the genotyping 24 types of HPV in DNA;“Orders” as defined in term 4.1; “Party” you or Source BioScience UK Limited ; “Parties” means you and Source BioScience UK Limited; “Personal Data” any data compiled and/or processed by Source BioScience UK Limited pursuant to this Contract which identifies a living individual; “Products” the extracted genomic DNA that is generated by Source BioScience UK Limited in preparing a Sample for Services; “Results” means the narrative report and/or any data arising out of the results of the Services including the outcome of the HPV Analysis undertaken by us which may be, Favourable Test Outcome or Unfavourable Test Outcome, as defined herein; “Samples” the specimens supplied by you to us for use in respect of the Services; “Services” means the services to be performed by us which include HPV Analysis, analysis of data and the communication of all results related to HPV Analysis to the referring clinician;“Unfavourable Test Outcome” means the following outcome of the HPV Analysis undertaken by us:
Any reference in these Conditions to "writing" or cognate expressions includes a reference to facsimile transmission, email or comparable means of communication.
The headings are for reference only and will not affect the interpretation of these Conditions.
We reserve the right at any time without liability to correct any clerical, typographical or other similar errors or omissions made by us.
References to statutes or statutory instruments shall be deemed to be references to those statutes or statutory instruments as the same may be amended or re-enacted from time to time.
2. APPLICATION OF TERMS
Subject to clause 2.4, these Conditions are the only conditions on which we are prepared to deal with you in relation to the Services and they will govern the provision of the Services.
These Conditions govern the HPV Analysis services offered by Source BioScience;
No terms, conditions or warranties endorsed upon, delivered with, referred to or stipulated or contained in any purchase order or other similar document delivered or sent by you to us will form part of the Contract.
No variation to, waiver of or addition to these Conditions or any representation about the Services will have any effect unless it is expressly agreed in writing and contains a specific reference to these Conditions.
3. THE SERVICES AND YOUR OBLIGATIONS
You warrant that you shall comply with all applicable laws in respect of your possession of and/or use of the Samples and Results.
You shall supply us with the Samples in respect of each Order for Services in a timely manner and, in any event, in such a timescale as will allow us to meet our delivery obligations.
You shall be responsible for ensuring that the Samples are of appropriate quantity, quality and purity suitable for use by us in the performance of the Contract.
If the Sample is of human tissue origin or where relevant to any other Sample that is not of human tissue origin, you warrant that you have gained any required ethical permissions and/or consents for the work to be undertaken by us in respect of the Services and you accept that we shall have no liability if these permissions and approvals have not been properly granted.
You understand that a Favourable Test Outcome is dependent upon us receiving specimens containing sufficient viable DNA, suitable for use by us in conducting HPV Analysis and you acknowledge that there is an inherent risk that a fraction of the HPV Analysis performed by us under this Contract may deliver an Unfavourable Test Outcome. You agree that in all the circumstances and having regard to the nature of the testing that the limitation in 3.6 herein is reasonable.
We shall not be held liable for any Unfavourable Test Outcome unless it can be demonstrated that such Unfavourable Test Outcome is attributable to our negligent acts or omissions or our breach of any of the warranties that we have provided under this Contract. Except as otherwise provided herein, you shall be liable for fees for Services including those with an Unfavourable Test Outcome,
Where a Sample gives rise to an Unfavourable Test Outcome, we will notify you. We will undertake a further test on a new Sample at your request and expense. All additional testing will be charged at the standard fee.
You shall co-operate with us, as we may reasonably determine, in relation to the provision of the Services.
4. ORDERS AND DELIVERY
You shall provide us with an order (the “Order”) for the Services in accordance with the following procedure:
Where you are able to submit the Sample and request form together: - by submitting a Sample together with a completed request form relevant to the HPV Analysis to be performed (which can be downloaded from our website or can be obtained, by request, from our Healthcare Customer Services Contact) to Source BioScience Healthcare, 1 Orchard Place, Nottingham Business Park, Nottingham NG8 6PX; or
5. PRICE AND PAYMENT
Fees for the Services shall be as agreed between us. Unless expressly agreed otherwise in writing by us, the fees for the Services shall be our standard fees as published by us from time to time (copies of which are available by request to our Healthcare Customer Services Contact).
You understand that in normal circumstances we shall seek payment from you in respect of the Services prior to the commencement of the HPV Analysis. Notwithstanding the foregoing in certain circumstances we may agree to invoice you for the Services following completion of the HPV Analysis in which case you shall pay the fees for the Services within 30 days of receipt of an invoice from us.
Subject to this clause 5.3, all fees are exclusive of VAT, which sum shall be added to your fee or the invoice as applicable and shall be payable by you. UK VAT is applicable to transactions within the European Union including the UK. For EU based organisations, registered outside the UK, supply of a valid VAT registration number is required, if you are to avoid UK VAT. Eligible bodies in the UK may qualify for zero rating under VATA 1994, Schedule 8, Group 15. Such organisations should check their eligibility status carefully and only supply a certificate where they are fully satisfied that zero-rating applies. We reserve the right to charge VAT to you where you do not provide a valid zero-rating certificate or where instructed to do so by HMRC.
In the event that we have agreed to invoice you the fees for the Services following completion of the HPV Analysis, no payment will be deemed to have been received until we have received the payment in full in cleared funds. Time for payment will be of the essence of the Contract.
All payments payable to us under the Contract will become due immediately on termination of this Contract despite any other provision of these Conditions.
You will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
Any defect in the Services which is due in whole or in part to defects in the Specimens submitted by you including but not limited to, inadequate viable DNA or non viable DNA will not entitle you to terminate the Contract, reject the Services, make any deductions from the fees or claim damages in respect of such defect.
If you fail to pay us any sum due pursuant to the Contract, then without prejudice to our other rights and remedies you shall pay interest to us at the rate of interest specified from time to time in the Late Payments of Commercial Debts (Interest) Act 1998, calculated daily on such sum from the due date for payment until payment is made in full (whether before or after any judgement).
6. SAMPLES, PROCESSING, STORAGE, RISK AND OWNERSHIP
Upon receipt of Samples we shall verify that the paperwork and the accompanying Sample concur.
We shall take reasonable care of any Sample whilst in our possession.
Provided that the Samples are not obviously of unsatisfactory quality, we shall proceed with the performance of the Services
We will not be liable for any loss or damage to Samples unless such loss or damage arises as a direct result of our negligence.
Unless otherwise expressly agreed retention or return of Samples will be at your cost and risk.
Unless otherwise expressly agreed between us, we shall supply the Results to you by one of the following mechanisms: printed paper copy by post or facsimile transmission to the referring clinician (or their named deputy) at the address or, where relevant, facsimile number as specified on the Order; email at an agreed email address to be provided by you prior to the commencement of the Services ; via a secure website or on a CD Rom.
We will not under any circumstances be liable for your use of the Results.
8. CONFIDENTIAL INFORMATION
You will ensure that the Sample you provide is in good condition and suitable for our use in the performance of the Contract and while we will use reasonable endeavours to verify any relevant aspects of the Sample, we accept no responsibility for its suitability for our use in the performance of the Contract.
Any defect in the Services which is due in whole or in part to defects in the Sample will not entitle you to terminate the Contract, reject the Services, make any deductions from the Contract price or claim damages in respect of such defect.
You will keep us indemnified in full against all liability, loss, damage, injury, claim, action, demand, expense or proceeding awarded against or incurred by us as a result of or in connection with our use of the Sample.
We warrant that we shall perform the Services using reasonable skill and care and in accordance with all applicable laws.
10. LIMITATION OF LIABILITY
The termination of the Contract (howsoever arising) will be without prejudice to any rights and remedies which may have accrued to either party.
Any Conditions which impliedly have effect after termination or expiry will continue to be enforceable notwithstanding termination or expiry.
12. ANTI-BRIBERY COMPLIANCE
The Company shall:
have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 10.1(b), and will enforce them where appropriate;
promptly report to SBS any request or demand for any undue financial or other advantage of any kind received by the Company in connection with the performance of this agreement;
The Company shall ensure that any person associated with the Company who is performing services in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Company in this clause 14 (Relevant Terms). The Company shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to SBS for any breach by such persons of any of the Relevant Terms.
We will not be liable to you or be deemed to be in breach of these Conditions by reason of any delay in performing or failure to perform any of its obligations under these Conditions if such delay or failure was beyond our reasonable control including, without limitation, fire, flood, strike or other industrial action of whatever nature. If we are unable to perform our obligations under these Conditions we will promptly notify you of the nature and extent of the circumstances in question.
You shall not without our prior written consent assign or transfer the Contract or any part of it to any other person.
We may without your prior written consent assign, transfer or subcontract the Contract or any part of it to any other person.
Each of rights or remedies under these Conditions are without prejudice to any other right or remedy which we may have under these Conditions or otherwise.
Any notice or other document to be served under the Contract must be in writing and may be delivered or sent by prepaid first class post or facsimile transmission. Any notice or document shall be deemed served, if delivered at the time of delivery, if posted, 48 hours after posting and if sent by facsimile transmission, at the time of transmission.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it will, to the extent of such illegality, invalidity, voidness, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
Failure or delay by either party in exercising any right or remedy provided by the Contract or by law will not be construed as a waiver of such right or remedy or a waiver of any other right or remedy.
A person who is not a party to the Contract will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.