Unless otherwise agreed between the Parties in writing:
the Customer shall pay CellTech the Charges within thirty (30) days of the date of invoice; and
all Charges shall be exclusive of VAT and any other imposed taxes, levies or duties, etc. (for which the Customer shall be additionally liable).
Unless otherwise agreed between the Parties in writing, CellTech shall invoice the Customer at the intervals specified in the Quote, or, where no such intervals are specified, CellTech shall invoice the Customer following completion of the Services and delivery of the Products (if any) set out in the applicable Accepted Purchase Order.
The Charges shall be payable by the Customer without any set-off (both legal and equitable) or deduction or any other form of withholding, unless required by mandatory law.
The Customer must notify CellTech within seven (7) days of the date of invoice in the event that any element of the Charges detailed therein is disputed.
CellTech shall be entitled in its entire discretion, acting reasonably, to withdraw any credit facility provided to the Customer (including but not limited to allowing the Customer to pay the Charges subsequent to the delivery/performance of any Product(s)/Services) and, amongst other things, CellTech shall be entitled to withdraw any agreed payment terms and instead require payment of the Charges in advance of delivery and/or performance of Product(s) and/or Services, respectively. CellTech shall notify the Customer of any such change(s) by notice in writing, which shall be effective immediately.
Passing of Title and Risk
Unless otherwise agreed in writing or advised by CellTech in writing:
risk of loss or damage of any Products supplied by CellTech to the Customer pursuant to the Agreement will pass to the Customer when the Products arrive at the applicable Customer Site; and
title in any Products shall pass from CellTech to the Customer only once all Relevant Charges have been received by CellTech in full.
Until title to Products has passed to the Customer, the Customer shall:
hold the Products on a fiduciary basis as CellTech’s bailee;
not remove, deface or obscure any identifying mark or packaging on or relating to the Products; and
maintain the Products in satisfactory condition and keep them insured against all risks from the date of delivery.
If, before title to Products passes to the Customer in accordance with Clause 2.1.2, the Customer:
becomes subject to an Insolvency Event or CellTech reasonably believes that an Insolvency Event is about to happen and notifies the Customer accordingly; or
fails to pay the Relevant Charges within sixty (60) days of the date due;
then, without prejudice to any other rights or remedy that CellTech may have, CellTech shall be entitled at any time to require that the Customer delivers up such Products to CellTech and, if the Customer fails to do so promptly, CellTech shall have the right to enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
Customer Obligations
The Customer warrants and represents that it shall:
perform its obligations under this Agreement in accordance with Good Industry Practice;
perform its obligations under this Agreement in accordance with all Applicable Laws including but not limited to laws relating to health and safety;
promptly provide CellTech with any assistance, information, documentation and other matters as may be reasonably requested by CellTech;
provide CellTech with full, safe and uninterrupted access to the Customer Site(s) as may be required for the purpose of performing the Services or supplying any Product(s);
promptly inform CellTech of any matters which are likely to adversely affect the provision of the Product(s) or Services to the Customer;
provide the Equipment set out in an Accepted Purchase Order by the dates and to the Customer Sites set out in the Accepted Purchase Order at no charge to CellTech;
assist CellTech in carrying out risk assessments at the Customer Site(s) if requested to do so; and
promptly comply with CellTech’s reasonable instructions and advice relating to the provision of the Product(s) or Services.
If the Customer fails to comply with any material obligation in the Conditions then CellTech may on written notice forthwith suspend the provision of the Product(s) and/or Services until such failure has been fully remedied and the Delivery Dates shall be extended to reflect any such delay and CellTech shall not be responsible nor liable for any failure to meet such dates. If CellTech determines that, acting reasonably, such delay has caused an increase in costs or expenses to CellTech in carrying out its obligations under an Accepted Purchase Order, CellTech may in its entire discretion invoice the Customer for the difference. CellTech shall use reasonable endeavours to mitigate its costs in relation to all such delays.
If at any time the Customer makes any claim whatsoever against CellTech or otherwise requests that CellTech investigates any problem that has arisen in connection with the provision of the Product(s) and/or Services, the Customer shall provide to CellTech all reasonable support and assistance (including, where applicable, physical access) in order for CellTech to assess, work on and correct the relevant Product(s) and/or Services.
The Customer warrants and represents that:
the Customer has full power and authority to enter into and perform the terms of this Agreement;
the Customer is the proprietor or appropriate licensee of the Customer Materials and has an unencumbered legal and beneficial right in all Intellectual Property Rights in the Customer Materials in order to grant such permission(s) and/or licence(s) to CellTech as stipulated in this Agreement;
the receipt and/or use of the Customer Materials by CellTech does not and shall not infringe any Intellectual Property Rights or any other rights whatsoever of any person; and
all documentation and any other information provided to CellTech by or on behalf of the Customer is true, accurate and complete in all respects.
Warranties and Obligations of CellTech
CellTech shall:
perform the Services in accordance with Good Industry Practice and Applicable Laws;
use reasonable endeavours to meet the Delivery Dates but any such dates shall be estimates only and time for performance by CellTech shall not be of the essence of this Agreement; and
carry out risk assessments at a Customer Site prior to the performance of Services at such Customer Site.
Subject to Clauses 4.3 to 4.10 (inclusive), CellTech warrants that it shall:
have full power and authority to enter into and perform the terms of the Agreement and any subsequently agreed Accepted Purchase Order;
perform the Services with reasonable care and skill; and
supply Products that materially conform to any specification agreed under an Accepted Purchase Order.
The Customer shall give notice to CellTech as soon as it is reasonably able upon becoming aware of any breach of Warranty.
Unless otherwise stated in writing, the Warranty Period for:
Products is six (6) Months from the date of delivery to the applicable Customer Site (“Product Warranty Period”); and
Services is ninety (90) days following completion of the relevant portion of the Services being performed (“Services Warranty Period”).
Subject to Clause 4.6, if the Customer discovers any material defect in any Products or Services, it shall notify CellTech with full details of such defect. If the Customer can evidence that any such defect has arisen within the relevant Warranty Period and is caused as a direct result of CellTech’s breach of Warranty, CellTech shall use reasonable endeavours to correct the defect within a reasonable period of time by:
at CellTech’s option, replacing or repairing the relevant Products;
re-performing the relevant Services; or
at CellTech’s entire discretion, refund any Relevant Charges paid.
Any such repair or replacement shall, where applicable, become part of the relevant Product(s).
Notwithstanding anything to the contrary set out in the Conditions, CellTech shall have no responsibility nor liability to remedy a breach of Warranty or any of its other obligations under the Accepted Purchase Order where such breach arises as a result of the occurrence of any of the events or circumstances described in Clause 4.7 or as a result of any failure on the part of the Customer to observe or perform any of its obligations under the Accepted Purchase Order.
Notwithstanding anything to the contrary set out in the Conditions, no claim of whatever nature may be brought under the Agreement (including under any Accepted Purchase Order) against CellTech and CellTech shall have no liability to the Customer or any other third party to the extent that such claim arises as a consequence of the following acts or circumstances:
the improper use, operation or neglect of any Product(s) and/or Services;
the Customer fails to follow CellTech’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Products or (if there are none) good trade practice regarding the same;
the defect arises as a result of CellTech following any drawing, design or specification supplied by or on behalf of the Customer;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
any repair, reconstruction, adjustment, alteration or modification of Product(s) and/or Services by or on behalf of the Customer without CellTech’s prior written consent; or
the use of Product(s) and/or Services for a purpose for which they were not designed.
The operation of the Warranty provisions above in this Clause 4 shall be in addition to any applicable third party or manufacturer’s warranty that the Customer may also have the benefit.
The Customer’s rights detailed under Clause 4.5 represent the exclusive remedy of the Customer in respect of any breach of Warranty by CellTech.
CellTech shall use reasonable endeavours to ensure that its Personnel:
comply with all of the Customer’s reasonable and lawful instructions in connection with their use and access to Customer Site(s) in connection with the provision of the Product(s) or Services; and
comply with all reasonable health and safety and security policies of the Customer that are made known to its Personnel.
Subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the provision of any Product(s) and/or the performance of any Services are hereby excluded to the fullest extent permitted by law.
CellTech agrees that each and any Personnel it uses, appoints or seconds to fulfil its obligations to the Customer under this Agreement (including under any Accepted Purchase Order) are, and shall for all purposes remain, the employee(s) of CellTech (or any of its subcontractors, suppliers or Affiliates) and that it is not intended that the contracts of employment of any such persons will transfer to the Customer or any replacement provider on termination or expiry of this Agreement (or such relevant Accepted Purchase Order) or any part thereof or otherwise.
Where the Customer requires CellTech to attend a Customer Site following the performance of Services in order to investigate a fault in the Products, Equipment and/or Services (as the case may be), CellTech shall provide the Customer with a Quote in relation to attending the Customer Site, and will not attend the Customer Site until it has received an Order from the Customer in relation to such attendance. Where CellTech determines in its sole opinion that the fault is due to breach by CellTech of the Warranties set out in Clause 4.2 and occurred during the relevant Warranty Period set out in Clause 4.4, CellTech shall not charge the Customer for attending the Customer Site and the provisions of Clause 4.5 shall apply. Where CellTech determines that the fault is not due to breach of Warranty by CellTech within the relevant Warranty Period, the Customer shall pay the cost of attendance as set out in the Quote and for the cost of any further attendance and/or remedial work required.
Limitation of Liability
References to liability in this Clause 5 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in the Agreement limits any liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
Charges properly due and payable by the Customer to CellTech;
The Customer’s liability for any indemnities given under this Agreement;
defective products under the Consumer Protection Act 1987; or
any liability that legally cannot be limited.
Subject to Clause 5.2 and Clause 5.4, CellTech’s total liability to the Customer:
arising in connection with the performance or contemplated performance of this Agreement (but excluding any Accepted Purchase Orders agreed hereunder) or any collateral contract shall be limited to £100,000 in each 12 month period commencing on the Effective Date or any anniversary of it;
arising in connection with the performance or contemplated performance of an Accepted Purchase Order agreed hereunder shall be limited to 100% of the Charges paid by the Customer in relation to such Accepted Purchase Order.
Subject to Clause 5.2, the following types of loss are wholly excluded:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill;
wasted management expenditure;
special or pure economic loss, costs, damages, charges or expenses; and
indirect or consequential loss.
CellTech has given commitments as to compliance of the Products and Services with relevant requirements. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
CellTech shall have no liability for delays in providing the Products and/or Services where CellTech or its Personnel determine that it is unsafe to enter the Customer Site(s) and/or perform the Services for reasons including but not limited to poor weather conditions (including high wind speeds) and/or the poor physical condition of the Customer Site(s).
Except as expressly provided in this Agreement or an Accepted Purchase Order and to the fullest extent permitted by applicable law, CellTech shall neither be liable nor responsible to the Customer or any other third party for any damage and/or loss which occurs or arises as a result of (or following) or to the extent that such damage and/or loss is caused or exacerbated by:
the Customer’s breach of, or failure to observe and/or perform, its obligations under an Accepted Purchase Order;
errors or omissions in any information or instructions provided to CellTech by or on behalf of the Customer in connection with the Products and/or Services, or any delay in providing such information or instructions;
the Customer’s use of the relevant Product(s) and/or Services after the Customer became, or should have become, aware of the relevant defect, loss or issue; or
CellTech (or any of its Personnel) carrying out any work in accordance with the Customer’s instructions.
This clause 5 shall survive termination of the Agreement.
Intellectual Property Rights
All Intellectual Property Rights in or arising out of or in connection with the Services (other than the Intellectual Property Rights in the Customer Materials) shall be owned by CellTech or its licensors.
The Customer grants to CellTech a royalty free, non-exclusive, non-transferable (save in respect of any Affiliate or Personnel of CellTech) licence to use and modify the Customer Materials for the duration of the Agreement (including during any relevant Accepted Purchase Order, if longer) to the extent necessary for the purpose of:
supplying the Product(s) and/or Services; and/or
complying with any of its obligations under the Conditions.
The Customer shall indemnify CellTech against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by CellTech arising out of or in connection with any claim that the receipt and/or use of the Customer Materials breaches the rights (including the Intellectual Property Rights) of any third party.
Force Majeure
Neither Party shall be liable for any breach of the Conditions or an Accepted Purchase Order which arises from an Event of Force Majeure.
Each of the Parties agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure and such notice shall contain details of the circumstances giving rise to the Event of Force Majeure and an estimate of the non-performance and delay.
If an Event of Force Majeure occurs, the affected Party must:
take all reasonable steps to overcome the effects of the Event of Force Majeure (but this does not require the settlement of claims on unreasonable terms); and
resume compliance with the Conditions or the terms of the Accepted Purchase Order (as the case may be) as soon as is practicable after the Event of Force Majeure no longer affects such Party.
If a default due to an Event of Force Majeure shall continue for forty-five (45) days, then either Party shall be entitled to terminate such affected Accepted Purchase Order (or such affected part thereof) immediately upon giving written notice to the other Party. The Parties shall not have any liability in respect of the termination of an Accepted Purchase Order as a result of an Event of Force Majeure.
Suspension and Termination
If the Customer fails to pay the Charges within twenty-one (21) days of the receipt of a written reminder for payment or fails to observe and perform any of its material obligations under the Conditions and/or an Accepted Purchase Order (or if CellTech is otherwise entitled to suspend the provision of any of the Product(s) or Services and/or terminate the Agreement, and/or an Accepted Purchase Order), CellTech shall be entitled to (in its entire discretion), by giving written notice to the Customer and without prejudice to any of its other rights and remedies, to immediately restrict or suspend the provision of the Product(s) and/or Services until such time as either:
the Charges (or such relevant portion thereof), together with any interest payable thereon, have been received in clear funds by CellTech; or
where suspension was a result of a material breach on the part of the Customer of its obligations under the Conditions and/or an Accepted Purchase Order, the Customer has remedied such breach to the reasonable satisfaction of CellTech.
Either Party (in this Clause 8 the “Terminating Party”) may terminate immediately on written notice to the other Party (in this Clause 8 the “Other Party”) the Agreement and all and any Accepted Purchase Order(s) at that time in effect if the Other Party becomes subject to an Insolvency Event. The Customer shall be liable to pay all Charges up until the day of termination in the event of it exercising its right to terminate under this Clause 8.2.
An Accepted Purchase Order (or affected part thereof) may be terminated forthwith by the Terminating Party if the Other Party commits a material breach thereunder and the Other Party fails to remedy the same within thirty (30) days of receiving written notice from the Terminating Party giving particulars of the breach (provided always that such material breach is capable of remedy within thirty (30) days, otherwise the Other Party shall be required to have put into place such steps as are appropriate to remedy the material breach to the Terminating Party’s reasonable satisfaction).
The termination of any Accepted Purchase Order(s) (or affected part(s) thereof) in accordance with Clause 8.3 shall not cause the termination or cessation of the Agreement or any other Accepted Purchase Orders (or any part thereof or the obligations of either Party thereunder) which are in effect on such date the relevant written notice of termination is provided for the affected Accepted Purchase Order(s). Accordingly, the Agreement and such other Accepted Purchase Order(s) shall remain in full force in accordance with its/their terms.
Either Party may terminate the Agreement by giving to the other not less than ninety (90) days’ notice in writing, such notice to take effect no earlier than twelve (12) Months following the Effective Date. The termination of the Agreement in accordance with this Clause 8.5 shall not cause the termination or cessation of any Accepted Purchase Orders (or any part thereof or the obligations of either Party thereunder) in effect on such date the relevant written notice is provided, nor on the date of the expiration of the relevant written notice. Accordingly, all Accepted Purchase Orders shall remain in force in accordance with its/their relevant terms.
Any termination shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
CellTech shall be entitled to terminate immediately on written notice to the Customer the Agreement and all and any Accepted Purchase Order(s) at that time in effect at any time if:
there is a change in the Control of the Customer which results in the Customer being Controlled by a person or persons whom CellTech considers, in its reasonable opinion, to be a direct competitor; or
at any time there is a change in the Control of the Customer which results in the Customer being Controlled by a person or persons whom CellTech has, acting reasonably, demonstrable concerns regarding their financial standing, provided that:
CellTech has requested reasonable assurances from the Customer as to its continued ability to perform its obligations under the Agreement and/or Accepted Purchase Order(s) following the change in Control (the “Financial Standing Assurances”); and
either the Customer has failed to provide such Financial Standing Assurances within a reasonable period or CellTech, acting reasonably, is not satisfied with the Financial Standing Assurances provided by the Customer.
Cancellation
Where the Customer wishes to cancel an Accepted Purchase Order prior to commencement of the Services it must provide notice in writing to CellTech.
In respect of Services, unless otherwise agreed in writing, where such notice is received during Working Hours at least two Working Days prior to the commencement of the Services under such Accepted Purchase Order, no Charges in relation to those Services shall be payable by the Customer.
Where such notice is not received during Working Hours at least two Working Days prior to the commencement of the Services under such Accepted Purchase Order, the Customer shall pay in full the Charges applicable to the two Working Days immediately following the day on which notice was properly given. By way of example, if notice was received during Working Hours on a Monday which was a Working Day, and Services were due to commence on the immediately following Wednesday, the Customer shall pay the Charges due for the Services scheduled to occur on that Wednesday.
In respect of Products, unless otherwise agreed in writing, the Customer shall pay the Charges applicable to the Products purchased by CellTech in order to perform an Accepted Purchase Order prior to the receipt by CellTech of notice in writing from the Customer pursuant to clause 9.1. CellTech shall invoice the Customer for the Products which invoice shall be payable on receipt. The Customer shall:
promptly collect such Products from CellTech’s premises or such other location as may be advised by CellTech following notification from CellTech that the Products are ready for collection; or
pay to CellTech the shipping costs required to transport the Products to the Customer’s premises. The provisions of Clause 2 (Passing of Title and Risk) shall apply to such Products, save that risk in such Products shall pass to the Customer:
at the time CellTech notifies the Customer that the Products are ready for collection; or
at the time CellTech despatches the Products to the Customer, as the case may be.
Compliance
The Parties shall, and shall procure that their officers, employees, agents and subcontractors shall:
comply with all applicable anti-bribery laws, including but not limited to, the Bribery Act 2010; and
undertake to put in place and implement adequate procedures to ensure that their officers, employees, agents and subcontractors, either directly or indirectly, do not offer or authorise the payment of any money, gifts, bribes, kickbacks or anything of value, or give, or agree to give, solicit or receive any advantage or consideration of any kind to induce or influence the proper performance of any person in connection with this Agreement or for showing or forbearing to show favour or disfavour to any person in relation to this Agreement; and
without prejudice to paragraph 10.1.1, not do or omit to do any act or thing that would cause the other Party to be guilty of an offence under the applicable anti-bribery laws.
The Parties agree to notify the other Party of any breach of any terms of paragraph 15.1 without undue delay. On receipt of any such notice, the non-defaulting Party shall have the right to terminate this Agreement and require full indemnification from the defaulting Party.
In performing its obligations under the Agreement, CellTech shall:
comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force (Anti-Slavery Laws) including but not limited to the Modern Slavery Act 2015;
not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4 of the Modern Slavery Act 2015 if such activity, practice or conduct had been carried out in England and Wales;
notify the Customer as soon as it becomes aware of any actual or suspected breach of clause 10.3;
CellTech represents and warrants that it has not been convicted of any offence involving slavery and human trafficking or been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.
Breach of this Clause 10 shall be deemed a material breach of this Agreement.
Data Protection
The Parties shall comply with their obligations under applicable data protection legislation. This clause is in addition to, and does not reduce, remove or replace, a Party’s obligations arising from such legislation.
Without prejudice to the generality of clause 11.1 where CellTech is required to process personal data as processor on behalf of the Customer in relation to the performance of the Services, the Parties will agree appropriate arrangements to ensure compliance with applicable data protection legislation.
General
Unless otherwise stipulated in a relevant Accepted Purchase Order, the Product(s) and/or Services provided by CellTech to the Customer pursuant to the Agreement shall be provided during Working Hours. Any of the Product(s) and/or Services required by the Customer outside of Working Hours shall be subject to CellTech’ standard out-of-hours charges as provided to the Customer from time to time.
The waiver by either Party of a breach or default of any of the provisions of the Agreement or an Accepted Purchase Order by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions of the Agreement or Accepted Purchase Order, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have under the Agreement or an Accepted Purchase Order operate as a waiver of any breach or default by the other Party.
Any notice, request, instruction or other document to be given under the Agreement shall be:
delivered by hand; or
sent by first class post to the address of the other Party set out in the relevant Accepted Purchase Order or this Agreement (or such other address as a Party may have been notified); or
sent by email to the email address of the Customer or CellTech, as may be set out in the relevant Accepted Purchase Order or otherwise used in the course of dealing between the Parties.
Any such notice, request, instruction or other document shall be deemed to have been served:
if delivered by hand, at the time of delivery;
if sent by post, upon the expiration of two (2) Working Days after dispatch; or
if sent by email, the date upon which the email is sent or, if this date is not a Working Day, on the next Working Day.
If any provision of the Agreement or an Accepted Purchase Order shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement or Accepted Purchase Order and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to use reasonable endeavours (and in good faith) to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
The Agreement and/or an Accepted Purchase Order may only be varied in writing, signed by the Parties (or their authorised representatives).
The Parties agree that nothing in the Agreement or an Accepted Purchase Order shall be deemed to create any partnership, joint venture or relationship of employer and employee between them.
This Agreement (and any Accepted Purchase Order agreed hereunder) and any dispute arising out of or in connection it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the Parties submit to the exclusive jurisdiction of the English courts.
