Applies to sales and supplies of good, samples, evaluation materials and restricted goods by Integrated Graphene Limited (Trading name iGii)
- INTERPRETATION
The following definitions apply in these conditions:
Agreement: the contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Authorised Purpose: solely the Buyer’s internal evaluation use expressly stated in the Quotation or Order Acknowledgement, and no other purpose.
Business Day: any day other than a Saturday, Sunday or bank holiday in Edinburgh.
Buyer: the person, firm or company who purchases the Goods from the Company.
Characterisation: any analytical, compositional, structural, morphological, physical, chemical, electrochemical, spectroscopic, microscopic, benchmarking, de-formulation, performance or similar testing or analysis intended, or reasonably capable, of revealing the composition, structure, properties, performance, source or manufacture of any Goods.
Company: Integrated Graphene Limited, a company incorporated in Scotland with company number SC553315 and having its registered office at Euro House, Wellgreen Place, Stirling, Scotland, FK8 2DJ.
Company Confidential Information: has the meaning given in Condition
Competitive Product: any product, material, process or service that reproduces, substitutes for, competes with, or is intended to replicate, the Goods or any product, material, process or service of the Company.
Conditions: these sales and sample-use terms and conditions, as amended from time to time in accordance with Condition
Delivery Date: the date for delivery specified in the Order Acknowledgement, or if no date is specified, the date notified by the Company.
Delivery Location: the location for delivery agreed in writing by the parties.
Goods: the goods, products, samples, prototypes, trial quantities, pilot lots, evaluation materials and any related documentation supplied by the Company to the Buyer under the Agreement.
Goods Specification: any specification for the Goods expressly set out in the Quotation or Order Acknowledgement.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, whether registered or unregistered, 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 that subsist or will subsist now or in the future in any part of the world.
Order: the Buyer’s order for the Goods, whether submitted by purchase order, email, web portal or otherwise.
Order Acknowledgement: the Company’s written acceptance of an Order, whether titled as an order acknowledgement, order confirmation, quotation acceptance, pro forma acceptance or similar.
Quotation: any quotation, proposal or offer document issued by the Company in relation to the Goods.
Restricted Goods: any Goods that are identified by the Company as samples, evaluation materials, evaluation quantities, trial quantities, pilot lots, non-production quantities, prototype materials, or otherwise subject to restricted or internal-use-only conditions.
Sample Data: all data, results, reports, observations, notes, images, models and conclusions arising from any handling, use, testing or Characterisation of any Restricted Goods.
- BASIS OF CONTRACT
2.1 These Conditions apply to the Agreement to the exclusion of any other terms that the Buyer seeks to impose or incorporate, whether by purchase order, acknowledgement, delivery note, invoice, online terms or otherwise, except where expressly agreed in writing by the Company.
2.2 A Quotation is an invitation to treat only and does not constitute an offer capable of acceptance.
2.3 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
2.4 The Agreement shall come into existence only when the Company issues an Order Acknowledgement or dispatches the Goods, whichever occurs first.
2.5 If there is any conflict between these Conditions and the Order Acknowledgement, the Order Acknowledgement shall prevail to the extent of the conflict.
2.6 The Buyer acknowledges that the restrictions in Conditions 8, 9 and 10 are material terms on which the Company is willing to supply the Goods.
- GOODS AND SPECIFICATION
3.1 The Goods are those described in the Quotation and Order Acknowledgement.
3.2 The Company may make any change to the Goods Specification which is required to comply with any applicable law or which does not materially affect the quality, functionality or intended use of the Goods.
3.3 Any samples, drawings, descriptive matter, advertising or illustrations produced by the Company are produced for the sole purpose of giving an approximate idea of the Goods referred to in them, and shall not form part of the Agreement unless expressly stated otherwise in the Order Acknowledgement.
3.4 The Company may identify any Goods as Restricted Goods in the Quotation, Order Acknowledgement, invoice, delivery note, packaging or accompanying instructions, and the Buyer shall treat such Goods as Restricted Goods whether or not they are separately priced.
- DELIVERY
4.1 The Company shall deliver the Goods to the Delivery Location or make them available for collection, as stated in the Order Acknowledgement.
4.2 Any Delivery Date is an estimate only and time of delivery is not of the essence unless expressly agreed in writing by the Company.
4.3 The Company may deliver the Goods by instalments, each of which shall be invoiced and paid for separately. Delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.4 Risk in the Goods shall pass to the Buyer on completion of delivery at the Delivery Location or, if the Goods are collected by the Buyer, on collection.
4.5 If the Buyer fails to take or accept delivery, the Company may store the Goods until delivery takes place and charge the Buyer for all related costs and expenses.
4.6 The Company shall not be liable for any delay or failure in delivery caused by an event beyond its reasonable control or by the Buyer’s failure to provide adequate delivery instructions, documents, licences or approvals.
- TITLE AND RISK
5.1 Risk in the Goods shall pass in accordance with Condition 4.4.
5.2 Title to the Goods shall not pass to the Buyer until the Company has received payment in full and in cleared funds for the Goods and all other sums due to the Company from the Buyer under any contract.
5.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
5.3.1 hold the Goods as bailee for the Company;
5.3.2 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property;
5.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
5.3.5 not sell, transfer, pledge, charge or otherwise dispose of any Restricted Goods without the Company’s prior written consent.
5.4 If before title passes to the Buyer the Buyer becomes insolvent or the Company reasonably believes that the Buyer is about to become insolvent, the Company may require the Buyer immediately to return all Goods for which it has not paid in full and, if the Buyer fails to do so promptly, may enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
- PRICE AND PAYMENT
6.1 The price of the Goods shall be the price stated in the Order Acknowledgement or, if no price is stated, the price set out in the Company’s Quotation.
6.2 Unless otherwise stated in the Order Acknowledgement, the price of the Goods is exclusive of value added tax and delivery, packaging, insurance and other applicable charges, which shall be payable by the Buyer.
6.3 The Company may invoice the Buyer on or at any time after dispatch of the Goods or, where the Goods are to be collected, at any time after the Company notifies the Buyer that the Goods are ready for collection.
6.4 Unless otherwise agreed in writing, the Buyer shall pay each invoice in full and in cleared funds within 30 days of the invoice date.
6.5 If the Buyer fails to make any payment due under the Agreement by the due date, then, without limiting the Company’s remedies, the Buyer shall pay interest on the overdue amount at 4% per annum above the base rate of the Bank of Scotland plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment.
6.6 The Buyer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding, except as required by law.
6.7 If the Buyer fails to pay any amount due to the Company, the Company may suspend further deliveries, withhold performance or terminate the Agreement in whole or in part.
- INSPECTIONS, ACCEPTANCE AND RETURNS
7.1 The Buyer shall inspect the Goods on delivery and notify the Company in writing within five Business Days of delivery of any claim that the Goods are damaged, short delivered or do not materially conform to the applicable Goods Specification.
7.2 If the Buyer fails to give notice in accordance with Condition 7.1, the Goods shall be deemed accepted, without prejudice to any claim in respect of a latent defect which could not reasonably have been discovered on inspection.
7.3 Where the Company accepts a claim under Condition 7.1, the Company may, at its option, replace the affected Goods, repair the affected Goods or refund the price paid for the affected Goods, and that shall be the Buyer’s sole and exclusive remedy for such claim, subject always to Condition 13.
7.4 The Buyer shall not return any Goods without the Company’s prior written authorisation and compliance with any return instructions issued by the Company.
- INTELLECTUAL PROPERTY RIGHTS
8.1 Unless the Company expressly agrees otherwise in writing, Restricted Goods are supplied solely for the Authorised Purpose and shall not be used for commercial production, resale, incorporation into products for sale, regulatory submission, clinical or human use, or any other external or commercial purpose.
8.2 The Buyer shall handle, store, transport, test, use and dispose of all Goods strictly in accordance with the Company’s written instructions, good industry practice and all applicable laws and regulations.
8.3 Without the Company’s prior written consent, the Buyer shall not, and shall procure that its employees, officers, contractors, advisers, affiliates, customers and collaborators do not:
8.3.1 conduct or permit any Characterisation of any Goods;
8.3.2 reverse engineer, disassemble, decompile, de-formulate, analyse, image, benchmark, map, sequence or otherwise seek to determine or infer the composition, structure, formulation, source, manufacture, process steps, parameters or know-how embodied in any Goods or used by the Company in producing them;
8.3.3 use any Goods, Sample Data or Company Confidential Information to research, design, develop, optimise, validate, manufacture or commercialise any Competitive Product;
8.3.4 file, procure the filing of, support or assist any patent, utility model, design registration or other Intellectual Property Rights application that claims, is based on, or relies upon any Goods, any Characterisation of the Goods, any Sample Data or any Company Confidential Information;
8.3.5 provide, transfer or make available any Goods or Sample Data to any third party, including any affiliate, contract laboratory, consultant, research partner, customer or subcontractor; or
8.3.6 remove, obscure or alter any proprietary notices, legends, labels or restricted-use markings affixed to or accompanying the Goods.
8.4 The Buyer shall keep complete and accurate written records of all handling, storage, use, testing and disposal of Restricted Goods and shall provide copies of those records to the Company on request.
8.5 The Buyer shall promptly disclose to the Company in writing and provide copies of all Sample Data and any invention, discovery, development, improvement or know-how arising from or relating to the possession, use, testing or Characterisation of any Restricted Goods.
8.6 The Buyer shall be responsible for compliance with this Condition 8 by all persons to whom it gives access to any Goods, Sample Data or Company Confidential Information.
8.7 Any breach of this Condition 8 shall constitute a material breach not capable of remedy unless the Company expressly agrees otherwise in writing.
- INTELLECTUAL PROPERTY
9.1 All Intellectual Property Rights in and to the Goods, all related know-how, trade secrets, formulations, manufacturing methods, processes, software, documentation and other materials supplied by or on behalf of the Company remain vested in the Company.
9.2 The sale of Goods does not transfer any Intellectual Property Rights to the Buyer except for the limited right to use the Goods for their intended purpose and, where applicable, solely for the Authorised Purpose in accordance with the Agreement.
9.3 All Intellectual Property Rights in and to Sample Data and any invention, discovery, development, improvement or know-how arising from or relating to the possession, use, testing or Characterisation of any Restricted Goods shall vest in the Company and, to the extent they do not automatically vest, are hereby assigned by the Buyer to the Company with full title guarantee, provided that the Buyer retains ownership of its pre-existing background intellectual property which is independent of the Restricted Goods.
9.4 All Intellectual Property Rights in and to Sample Data and any invention, discovery, development, improvement or know-how arising from or relating to the possession, use, testing or Characterisation of any Restricted Goods shall vest in the Company and, to the extent they do not automatically vest, are hereby assigned by the Buyer to the Company with full title guarantee, provided that the Buyer retains ownership of its pre-existing background intellectual property which is independent of the Restricted Goods.
9.5 The Buyer shall execute all documents and do all acts reasonably required by the Company to perfect or record the rights granted, assigned or vested under this Condition 9.
- CONFIDENTIALITY
10.1 For the purposes of this Agreement, Company Confidential Information means all information disclosed or made available by or on behalf of the Company to the Buyer, whether orally or in written, electronic or other form, that relates to the Company’s business affairs, products, services, materials, confidential intellectual property, trade secrets, third-party confidential information or other sensitive or proprietary information. Company Confidential Information expressly includes the existence, identity and purpose of any supply of Restricted Goods, the Goods themselves, all Sample Data, all Characterisation results, all reports, observations and analyses relating to the Goods, and any information from which the composition, structure, formulation, properties or manufacturing process of any Goods may be determined or inferred.
10.2 The Buyer shall protect the confidentiality of the Company Confidential Information with at least the same degree of care as it uses to protect its own confidential information of a similar nature, and in any event with no less than reasonable care.
10.3 The Buyer shall not use the Company Confidential Information, or permit it to be accessed or used, for any purpose other than exercising its rights and performing its obligations under the Agreement.
10.4 The Buyer shall not disclose any Company Confidential Information except to those of its employees, officers and advisers who need to know it for the purposes of the Agreement and who are bound by obligations of confidentiality and restricted use no less onerous than those in the Agreement.
10.5 The Buyer shall be responsible for any breach of this Condition 10 by any person to whom it discloses Company Confidential Information.
10.6 If the Buyer is required by law or by a court or regulatory authority to disclose any Company Confidential Information, it shall, to the extent legally permitted, give the Company prompt written notice before disclosure and take into account the Company’s reasonable requirements as to the timing, content and manner of the disclosure.
10.7 The obligations in this Condition 10 shall continue for five years after termination or expiry of the Agreement, and for so long thereafter as any relevant information remains a trade secret of the Company.
10.8 The Buyer acknowledges that damages alone may not be an adequate remedy for breach of this Condition 10 and that the Company shall be entitled to seek equitable relief, including interdict or injunction, specific implement and any other available relief, without prejudice to any other rights or remedies.
- WARRANTIES AND DISCLAIMERS
11.1 Subject to Conditions 7 and 13, the Company warrants that, on delivery, any Goods that are not Restricted Goods will materially conform to the applicable Goods Specification, if any.
11.2 Restricted Goods, samples, prototypes, trial quantities, pilot lots, development materials and any Goods supplied for evaluation are supplied on an ‘as is’ basis and, to the fullest extent permitted by law, the Company gives no warranty, representation or undertaking as to merchantability, fitness for a particular purpose, performance, non-infringement or suitability for commercial use.
11.3 Except as expressly stated in these Conditions, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.4 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Agreement.
- BUYER RESPONSIBILITIES AND COMPLIANCE
12.1 The Buyer is solely responsible for assessing the suitability of the Goods for its intended use and for all handling, storage, transport, testing, use, disposal and downstream application of the Goods.
12.2 The Buyer is solely responsible for assessing the suitability of the Goods for its intended use and for all handling, storage, transport, testing, use, disposal and downstream application of the Goods.
12.3 The Buyer shall comply with all applicable laws, regulations and good industry practice relating to the handling, storage, use, testing, transport, export, import and disposal of the Goods.
12.4 The Buyer shall ensure that the Goods are handled only by suitably qualified and trained personnel using appropriate facilities, equipment and safeguards.
- LIMITATIONS OF LIABILITY
13.1 Nothing in the Agreement limits or excludes any liability which cannot legally be limited or excluded, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.
13.2 Subject to Condition 13.1, the Company shall not be liable to the Buyer for any indirect or consequential loss, loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill or loss of reputation.
13.3 Subject to Condition 13.1, the Company’s total liability to the Buyer arising under or in connection with the Agreement, whether in contract, delict (including negligence), misrepresentation, restitution or otherwise, shall not exceed the price paid by the Buyer for the specific Goods giving rise to the claim
13.4 Nothing in this Condition 13 shall limit or exclude the Buyer’s liability for payment of sums due, breach of Conditions 8, 9, 10 or 15, or infringement or misuse of the Company’s Intellectual Property Rights, Company Confidential Information or Restricted Goods.
- TERMINATION AND SUSPENSION
14.1 Nothing in the Agreement limits or excludes any liability which cannot legally be limited or excluded, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation.
14.2 Either party may terminate the Agreement with immediate effect by written notice to the other party if the other party commits a material breach of the Agreement which is irremediable or, if remediable, is not remedied within 14 days after being notified in writing to do so.
14.3 Termination or expiry of the Agreement shall not affect any accrued rights, remedies, obligations or liabilities of the parties existing at the date of termination or expiry.
- CONSEQUENCES OF TERMINATION
15.1 On termination or expiry of the Agreement, or at any time on the Company’s written request following a breach or suspected breach of Conditions 8, 9 or 10, the Buyer shall immediately cease all use of the relevant Goods, Sample Data and Company Confidential Information and shall return or, at the Company’s option, destroy all such materials in its possession or control, including all copies, extracts, reports and notes.
15.2 If the Company requires destruction under Condition 15.1, the Buyer shall provide a written certificate of destruction signed by an authorised signatory. Any retention required by law shall be limited to the minimum extent required and any retained material shall remain subject to the Agreement.
15.3 Conditions 8, 9, 10, 13, 15 and 17 and any other provision which by its nature is intended to survive termination or expiry shall remain in full force and effect.
- NOTICE
16.1 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or other next working day delivery service to its principal place of business, or sent by email to the address specified in the Order Acknowledgement or otherwise notified for the purpose.
16.2 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or other next working day delivery service to its principal place of business, or sent by email to the address specified in the Order Acknowledgement or otherwise notified for the purpose.
16.3 This Condition 16 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.
- GENERAL
17.1 Entire agreement. The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them relating to its subject matter.
17.2 Force majeure. The Company shall not be in breach of the Agreement nor liable for delay or failure in performing its obligations to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control.
17.3 Assignment. The Company may at any time assign, transfer, charge, subcontract, declare a trust over or otherwise deal with any of its rights and obligations under the Agreement. The Buyer shall not do any of those things without the prior written consent of the Company.
17.4 Relationship of the parties. Nothing in the Agreement is intended to, or shall, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy.
17.6 Severance. If any provision or part-provision of the 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 modification is not possible, the relevant provision or part-provision shall be deemed deleted, and the validity and enforceability of the rest of the Agreement shall not be affected.
17.7 Third party rights. No term of the Agreement shall be enforceable by a person who is not a party to it.
17.8 Variation. Any variation of the Agreement must be in writing and signed by authorised representatives of both parties.
17.9 Governing law. The Agreement and any dispute or claim, including non-contractual disputes or claims, arising out of or in connection with it, its subject matter or its formation shall be governed by and construed in accordance with the law of Scotland.
17.10 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim, including non-contractual disputes or claims, arising out of or in connection with the Agreement, its subject matter or its formation.