CENTRAL LABORATORIES
TERMS AND CONDITIONS (2005 Version)
1 Definitions
1.1 In these Conditions (unless the context otherwise requires):
Central Laboratories means Central Laboratories a trading division of ABNA Limited (No. 193800, whose registered office is at the Weston Centre, 10 Grosvenor Street London W1K 4QY);
Conditions means these terms and conditions;
Customer means the person, firm or company with whom the Contract is made;
Contract means the contract between the Customer and Central Laboratories for the supply of the Services (which incorporates these Conditions);
Intellectual Property Rights means all intellectual property rights wherever arising including but not limited to copyright, patent rights, utility models, service marks, trademarks, design rights, data base rights, know how, technical information, confidential process information, trade and business names, proprietary information and all similar rights whether registered or not and all rights to apply for such registrations;
Order means the Customer’s request for the Services;
Samples means the samples sent to Central Laboratories for testing under the Contract; and
Services means the analytical testing of Samples and any other services supplied or to be supplied by Central Laboratories pursuant to the Contract.
2 Formation of Contract
2.1 The Services are provided subject to these Conditions which shall govern and be deemed to be incorporated into the Contract to the exclusion of all other terms and conditions. Any other terms and conditions referred to in any order, letter, form of contract or other communication sent by the Customer to Central Laboratories shall not be binding on Central Laboratories. The placing of an Order or acceptance of the Services by the Customer shall indicate unqualified acceptance of these Conditions.
2.2 No variation, amendment or waiver of these Conditions shall be valid unless expressly accepted in writing by a director of Central Laboratories.
3 Orders
Notwithstanding that Central Laboratories may have given a detailed quotation no Order shall be binding on Central Laboratories until it starts to provide the Services ordered.
4 Service standards
4.1 Central Laboratories shall perform the Services with all reasonable care and skill and in accordance with good industry practice. However the Customer accepts that Central Laboratories has no responsibility whatsoever for the use to which information it provides in connection with the Services is put, that being entirely a matter for the Customer and not something that Central Laboratories has influence over or, in many cases, awareness of.
4.2 The Customer accepts that Central Laboratories’ analysis is confined to the actual Samples tested and that it does not give any assurances that the bulk from which those Samples were taken would yield the same analysis if tested or be of the same quality or composition.
4.3 Each party shall comply with all legislation, statutes, regulations and other enactments having the force of law from time to time that is applicable to it in respect of the provision and commissioning of the Services.
4.4 The Customer is aware that not all the tests undertaken out by Central Laboratories are accredited by the UK Accreditation Services (UKAS). Central Laboratories shall indicate in the test results that it delivers to Customers which of the tests it carried out carry UKAS accreditation.
5 Fees
5.1 Unless otherwise agreed by Central Laboratories in writing the fees payable for Services (the “Fees”) shall be as set out in Central Laboratories’' standard schedule of fees at the date it provides the Servicesbut for Services not covered by the standard schedule the Fees shall be calculated by it by reference to the man days or hours needed to do the work (which shall be notified to the Customer).
5.2 Central Laboratories shall be entitled to invoice the Customer for each Sample analysed at the time of delivering the test results to the Customer.
5.3 Central Laboratories reserves the right to increase the Fees at any time to take account of any increase in its costs in connection with the Services including (but not limited to) increases in material costs, cost increases caused by exchange rate fluctuations or changes to its duties.
5.4 The Fees are exclusive of value added tax (unless stated by Central Laboratories to the contrary) and where due this will be paid by the Customer in addition.
6 Payment
6.1 The Customer shall pay the Fees within 30 days of the invoice date but payment shall become immediately due on the occurrence of any of the events referred to in Clause 9, below. The time of payment shall be of the essence.
6.2 If, within seven days of the invoice date, the Customer has not notified Central Laboratories that it disputes whether amounts contained in an invoice are properly due it shall be deemed to have accepted that the sums stated as payable are properly due and to have waived all its rights to subsequently dispute whether those sums are due.
6.3 If the Customer disputes part of an invoice only it shall settle the undisputed sums in accordance with these Conditions notwithstanding it is disputing other sums.
6.4 The Fees shall be due in full to Central Laboratories in accordance with the terms of these Conditions and the Customer shall not be entitled to exercise any set-off or any other similar right or claim. Central Laboratories shall be entitled to exercise a lien over Samples and analytical results that would otherwise be sent to the Customer pending the payment to Central Laboratories of all sums due to it from the Customer, whether under the Contract or otherwise.
6.5 Without prejudice to its other rights Central Laboratories may (both before and after any judgment) charge interest at the higher of the interest rate payable on court judgements or 4 per cent above the base rate from time to time of Barclays Bank plc on overdue payments of the Fees.
7 Samples
7.1 Unless Central Laboratories otherwise agrees, the Customer shall be responsible for arranging the delivery of Samples to Central Laboratories’ premises in Banbury. The Customer bears the risk of loss of, damage to or deterioration in Samples whilst in transit.
7.2 If Central Laboratories agrees to arrange the collection or delivery of Samples in doing so it is acting as the agent of the Customer.
7.3 The Customer warrants and undertakes that, as regards any Samples that it may require Central Laboratories to handle:
(a) it is the owner of all of such Samples or where it is not the owner it has the consent of the owner for Central Laboratories to handle the Samples; and
(b) the Samples are safe for handling and are not of a nature that is likely to cause injury or harm to persons handling them or damage to the equipment or vehicles used to handle them.
7.4 The Customer shall ensure that all Samples are supplied in appropriate packaging and that this packaging and the Samples contained in it are labelled with and accompanied by appropriate safety labelling and handling precautions.
7.5 In any event, the Customer shall, without prejudice to its other obligations, inform Central Laboratories in writing before despatching Samples to Central Laboratories of any special precautions to be taken by Central Laboratories in the handling or care of the Customer's Samples and any suspected health and safety risks associated with such Samples. Central Laboratories reserves the right to refuse to provide the Services, without liability to the Customer, in relation to any Samples which Central Laboratories reasonably considers may pose a threat to the health and safety of its staff or contractors.
7.6 If Samples require special precautions to be taken in their handling, treatment or disposal Central Laboratories shall be entitled to charge for any resulting additional work or costs.
7.7 In sending Samples to Central Laboratories for analysis the Customer is thereby licensing Central Laboratories to handle, process and deal with such Samples and to carry out such tests on them as it thinks fit in its absolute discretion. When Central Laboratories has completed its test on Samples it is free to dispose of them as it chooses.
8 Liability
8.1 Nothing in these Conditions shall operate to exclude, Central Laboratories liability for death or personal injury caused by its negligence or for fraud.
8.2 Subject to Clause 8.1, above, Central Laboratories shall not be liable for any actions, proceedings, demands, losses, costs, claims, damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duty:
(a) of an indirect or consequential nature;
(b) calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis; or
(c) to the extent that the same is caused wholly or partly by breach of any condition or term of these Conditions by the Customer.
8.3 Any claim from the Customer must be notified to Central Laboratories within seven days of the time of the events giving rise to the claim coming to the notice of the Customer. Central Laboratories shall in any event be discharged from all liability unless proceedings are brought within twelve months of the date on which the Services were provided.
8.4 If the Customer believes that Central Laboratories has provided defective Services it will immediately inform Central Laboratories, who will investigate, and if the Customer requires will repeat the relevant Services or elements of them to ascertain whether the Services are defective. If repeat Services show the original Services not to be defective then the Customer will pay the Fee for the repeat Services. If Central Laboratories’ Services are proven to be defective it will repeat the defective Services at no additional charge.
8.5 The Customer agrees to use its best endeavours to recover losses, claims, demands or expenses incurred by it from its insurers instead of Central Laboratories and to the extent that it is successful in recovering such sums from its insurers Central Laboratories shall not be liable to the Customer.
8.6 Subject to Clause 8.1, above, the total aggregate liability of Central Laboratories under or in connection with the Contract (whether in contract, for negligence, breach of statutory duty or otherwise) for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the sum of £20,000. Central Laboratories is prepared to consider written requests from the Customer for it to bear greater potential liability than is accepted by it under this Clause 8 provided that the Customer reimburses the additional costs that it directly or indirectly incurs through considering any such request and the costs of Central Laboratories increasing its insurance to cover the increased risk to it. Any change in the potential liability accepted by Central Laboratories under this Clause 8 must be recorded in accordance with Clause 2.2, above.
9 Default or insolvency of the Customer
If the Customer is in breach of any of its obligations under the Contract or any other contract or account with Central Laboratories or if any distress or execution shall be levied on the its property or assets or if it makes or offer to make any arrangement or composition with its creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against it or if any resolution or petition to wind it up is passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of its business, property or assets is appointed, Central Laboratories may, in its discretion and without prejudice to any other right or claim, by notice in writing terminate the Contract wholly or in part or suspend the provision of the Services until the circumstances giving rise to such right have been remedied or reversed to Central Laboratories satisfaction.
10 Force majeure
Central Laboratories shall not incur any liability to the Customer if it is prevented from or hindered in performing its obligations under the Contract by circumstances outside its reasonable control including, (without limitation), industrial action, strikes, sickness, lockouts, blockades, third party action, Governmental action, unpredicted surges in demand for Services, riots, act of war, breakdown or damage to equipment, fire, explosion, storm, flood, earthquake, excessive heat, failures of shortages in equipment, power, supplies, fuel or transport facilities.
11 Confidentiality
11.1 Subject to Conditions 11.2 and 11.3, below, at all times during the Contract and for a period of three years thereafter each party shall, and shall procure that its employees shall keep secret and confidential all business and trade secrets, methods of doing business, price lists and other confidential information and material disclosed by or obtained from the other (Confidential Information). Each party undertakes not to disclose the Confidential Information to any third party other than its responsible employees to whom disclosure is in good faith necessary for the proper performance of their duties in connection with the Contract.
11.2 The obligations of confidentiality under Clause 11.1, above, shall not apply to any information or material which:
(a) was known to the recipient before its receipt from the disclosing party;
(b) is lawfully in the public domain other than by reason of breach.
(c) it is required to disclose by law, regulation or order of a court of competent jurisdiction or a regulatory authority having jurisdiction over the recipient or with whose direction the recipient is bound to comply.
11.3 The obligations of confidentiality under Clause 11.1, above, shall not prevent Central Laboratories using, exchanging and commercially exploiting the data and results that it obtains from analysing Samples to compile data bases of analytical service results for itself and third parties provided that in doing so it does not disclose the identity of the Customer as the originator of Samples that yield specific results.
12 Intellectual Property
12.1 All Intellectual Property Rights in or relating to the Services and all reports and other information produced by Central Laboratories in connection with the Services shall (subject to any existing third party rights) be the exclusive property of Central Laboratories and the Customer shall ensure that neither it nor any agent, contractor or other person authorised by it shall at any time make any unauthorised use of those Intellectual Property Rights.
12.2 The Customer agrees to do such things (including executing such contracts, assignments and registrations, if required) as Central Laboratories may require in order to ensure that it is fully able to enjoy it Intellectual Property Rights in relation to the Services.
13 General
13.1 Delay in exercising, or a failure to exercise, any right or remedy in connection with these Conditions shall not operate as a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not preclude any other or further exercise of that right or remedy, or the exercise of any other right or remedy. A waiver of a breach of these Conditions shall not constitute a waiver of any subsequent breach.
13.2 All notices (including all other documents) to be served under these Conditions shall be in writing and shall be delivered or sent:
(a) in the case of Central Laboratories to Central Laboratories’ premises at Wildmere Road, Banbury Oxon, OX16 3XS;
(b) in the case of the Customer to the address provided to Central Laboratories in the Order.
13.3 A notice shall be delivered by hand or sent by prepaid first class recorded delivery. E-mail and fax notice shall not be valid for the purposes of the Contract.
13.4 In proving service of a notice, it shall be sufficient to prove that delivery was made or that the envelope containing the notice was properly addressed and posted.
13.5 Each of the parties acknowledges that it is not entering into the Contract in reliance upon any representation, warranty, collateral contract or other assurance (except those expressly set out in the Contract) made by or on behalf of any other party. Each of the parties waives all rights and remedies which, but for this Clause might otherwise be available to it in respect to any such representation, warranty, collateral contract or other assurance, provided that nothing in this Clause shall limit or exclude any liability for fraud.
13.6 Any conditions or warranties other than those expressly set out in the Contract (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) are expressly excluded from the Contract to the fullest extent permitted by law.
13.7 Nothing in the Contract shall constitute or be deemed to constitute a partnership or other form of joint venture between the parties or constitute or be deemed to constitute either party the agent or employee of the other for any purpose whatsoever.
13.8 No person who is not a party to the Contract is entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
13.9 Each provision of these Conditions is severable and distinct from the others. If a provision of these Conditions is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the legality, validity and enforceability of the remainder of these Conditions shall not be affected.
13.10 Central Laboratories may assign the benefit and/or burden of the Contract and sub contract the Services in whole or in part without the need for the Customer’s consent. The Customer may not assign the Contract in whole or in part or sub-contract its rights or obligations under it without Central Laboratories’ consent.
13.11 The Contract is and these Conditions are governed by, and shall be interpreted in accordance with, English law and each party irrevocably submits to the non-exclusive jurisdiction of the English Courts in relation to all matters arising out of or in connection with the Contract.
