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TERMS AND CONDITIONS OF SUPPLY (CONSUMABLE GOODS)

SPHERE FLUIDICS LIMITED
TERMS AND CONDITIONS OF SUPPLY
(CONSUMABLE GOODS)
UPDATED 2023 07 04

1. DEFINITIONS
In these Conditions, and elsewhere in the Contract:
Conditions means these terms and conditions of supply;
Confidential Information has the meaning given it in Clause 6.1;
Contract means the contract between Sphere and Customer that incorporates these Conditions by reference (so that any reference to the Contract automatically incorporates a reference to these Conditions);
Customer means the entity that has entered into the Contract with Sphere, under which Sphere is to supply the Goods;
Customer Order means Customer’s written acceptance of the Sphere Quotation;
Delivery Location means the location for delivery of the Goods specified in the Sphere Quotation or otherwise agreed by the Parties;
Goods means the chemicals, biochips, biological reagents or other consumable goods that are to be supplied by Sphere to Customer under the Contract, as described in the Sphere Quotation;
Goods Specification means (a) any technical or other specification for the applicable Goods set out in or expressly referred to in the Sphere Quotation and (b) any description of the applicable Goods and their functionality or performance set out in manuals or instructions for use supplied by Sphere for such Goods;
IPR means: any patent or other rights in inventions, copyright (including copyright in computer programs), design right, registered design right, database right or rights in know-how; any equivalent rights in any part of the world; and any applications for the registration of any such rights capable of registration in any part of the world;
Party means Sphere or Customer; and Parties refers to both of them;
Sphere means Sphere Fluidics Limited, a company registered in England and Wales with company number 07167872;
Sphere Quotation means the written quotation provided to Customer by Sphere, offering to provide the Goods to Customer;
VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;

Warranty Period means the period of 6 months from the date of delivery;
writing and cognate expressions include a reference to e-mail unless expressly provided to the contrary.
2. BASIS OF CONTRACT
2.1 Sphere Quotation. The Sphere Quotation constitutes an offer by Sphere to Customer to supply the Goods in accordance with the Sphere Quotation and these Conditions. Such offer may only be accepted by Customer accepting the Sphere Quotation, in writing by completing the acceptance form comprised in the Sphere Quotation, within 30 days of the date of the Sphere Quotation, or within such longer period as Sphere may in writing agree (for which e-mail will be sufficient).
2.2 Contract. At the time and on the date that Customer accepts the Sphere Quotation as above the Contract shall come into existence. The Contract consists in the Sphere Quotation, these Conditions and any other documents expressly incorporated into the Contract by reference.
2.3 Exclusive terms. The Contract constitutes the entire agreement between the Parties. Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Sphere which is not set out in the Contract. In particular, any samples, drawings, descriptive matter or advertising issued or published by Sphere are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force, except to the extent they are expressly incorporated into the Contract by reference.
2.4 No other conditions. These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade custom, practice, course of dealing or otherwise. In particular, if Customer places an order for the Goods (or any of them) that are the subject of the Contract and such order incorporates or refers to any other terms and conditions, such order shall be deemed to have been placed as a formality only and such other terms and conditions shall not apply.
3. SUPPLY, DELIVERY AND TIMING
3.1 Supply of Goods. Sphere agrees to supply the Goods to Customer, and Customer agrees to purchase the Goods from Sphere, on the terms of the Contract.
3.2 Delivery. Unless otherwise agreed in writing by the Parties (for which e-mail will be sufficient), Sphere shall deliver the Goods to the Delivery Location. Delivery of the Goods shall be completed upon the Goods’ arrival at the Delivery Location.
3.3 Timing. Any dates quoted or otherwise agreed for delivery of Goods are approximate only, and the time of delivery is not of the essence. Sphere will however use its reasonable efforts to adhere to agreed dates for delivery of Goods.
4. RISK AND TITLE
4.1 Risk. The risk in the Goods shall pass to Customer upon completion of delivery.
4.2 Title.
4.2.1 Title to the Goods shall not pass to Customer until Sphere has received payment in full (in cash or cleared funds) for the Goods and any other goods or any services that Sphere has supplied to Customer; and upon payment of all such sums title to the Goods shall pass to Customer.
4.2.2 Until title to the Goods has passed to Customer, Customer shall: (a) store the Goods separately from all other goods held by Customer so that they remain readily identifiable as Sphere’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Sphere’s behalf from the date of delivery; (d) notify Sphere immediately if it becomes subject to any of the events listed in clauses 10.1.3 through 10.1.9; and (e) give Sphere such information relating to the Goods as Sphere may require from time to time.
4.2.3 Subject to clause 4.2.4, Customer may use the Goods in the ordinary course of its business (but not otherwise) before title to them passes to Customer.
4.2.4 If before title to the Goods passes to Customer it becomes subject to any of the events listed in clause clauses 10.1.3 through 10.1.9 then, without limiting any other right or remedy Sphere may have: (a) Customer’s right to use the Goods in the ordinary course of its business ceases immediately; and (b) Sphere may at any time: (i) require Customer to deliver up all Goods in its possession; and (ii) if Customer fails to do so promptly, enter any premises of Customer or of any third party where the Goods are stored or believed by Sphere to be stored, in order to recover them.
5. FINANCIAL
5.1 Amounts payable. The amounts to be paid by Customer to Sphere under the Contract shall be the amounts specified in the Sphere Quotation, subject as follows:
5.1.1 The price of the Goods stated in the Sphere Quotation is EX WORKS (Incoterms 2010).
5.1.2 Sphere shall also be entitled to charge Customer any other amounts payable by Customer under the terms of the Contract.
5.2 Payment. Customer shall pay all amounts payable by it within 30 days of the date of Sphere’s invoice, unless different payment terms are stated in the Sphere Quotation or have otherwise been agreed in writing by the Parties; in which case Customer shall pay such amounts in accordance with those payment terms.
5.3 Manner and currency of payment. Customer shall pay all monies becoming due to Sphere under the Contract by electronic transfer to a bank account nominated by Sphere or by such other means as Sphere may reasonably require. It shall pay them in Pounds Sterling or in such other currency as is specified in the Sphere Quotation, and shall pay them in full without any withholding or deduction because of any set-off, counterclaim, abatement or otherwise.
5.4 VAT. All sums becoming due to Sphere under the Contract are exclusive of any VAT, which (in the case that Sphere is obliged by law to charge VAT) Customer shall pay in addition against Sphere’s VAT invoices.
5.5 Overdue amounts. In addition to any other right or remedy that Sphere may have, if any amount due to Sphere is not paid on time:
5.5.1 if required by Sphere, Customer shall pay interest on the overdue amount at the rate from time to time prescribed by or pursuant to the Late Payment of Commercial Debts (Interest) Act 1998. The interest period shall run from the due date for payment until receipt of the full amount by Sphere, whether before or after any judgement;
5.5.2 Sphere may without liability withhold any Goods in its possession or under its control until receipt of the full amount by Sphere, together with any interest charged as above; and
5.5.3 Customer shall upon demand by Sphere reimburse Sphere all costs and expenses (including legal fees on a full indemnity basis) incurred by Sphere in recovering overdue amounts from Customer.
6. CONFIDENTIALITY
6.1 Confidentiality of Confidential Information. Each Party agrees to maintain secret and confidential all information obtained from the other Party, whether pursuant to the Contract or prior to and in contemplation of it, and all other information that it may acquire from the other in the course of the Contract, to respect the other’s proprietary rights in such information, to use it exclusivity for the purposes of or as contemplated by the Contract, and to disclose it only to such persons to whom and to the extent that such disclosure is reasonably necessary for such purposes. In the Contract, and subject to Clause 6.2, the information referred to in the immediately preceding sentence is called Confidential Information. Without limiting the scope of Confidential Information, it shall include: (a), subject to Clause 6.2, and as Confidential Information of Sphere, all know-how and other information concerning Sphere’s products, services, software and otherwise Sphere’s business at any time disclosed to Customer by Sphere; and (b), as Confidential Information of both Parties, the terms of the Contract.
6.2 Certain information not Confidential Information. Confidential Information excludes information which:
6.2.1 prior to receipt thereof from one Party was in the possession of the other and at its free disposal; or
6.2.2 is subsequently disclosed to the recipient Party free of any obligations of confidentiality by a third party who has not derived it directly or indirectly from the other; or
6.2.3 is or becomes generally available to the public through no act or default of the recipient Party or its employees, subcontractors or agents.
6.3 Mandatory disclosures. If and as soon as a Party becomes aware that it may be obliged by any applicable laws or competent authority to disclose any Confidential Information of the other Party, then it shall (if it lawfully can) so notify the other and shall at the request and cost of the other provide to the other such assistance as the other may reasonably require in taking lawful steps to limit or prevent the disclosure.
6.4 Obligation to pass on obligations of confidentiality. Each Party shall:
6.4.1 procure that all persons to whom it discloses any Confidential Information of the other shall be made aware of and subject to obligations of confidentiality and non-use reflecting this Clause 6; and
6.4.2 use its best efforts to enforce such obligations.
A breach by any of such persons of any of such obligations shall be deemed to be a breach of the Contract by such Party.
6.5 Period of application. This Clause 6 shall continue in force for a period of 5 years from the date the Contract is entered into.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Ownership. All IPR in the Goods is and shall be owned by Sphere or its third party suppliers or licensors.
8. WARRANTIES
8.1 Warranty. Sphere warrants that the Goods shall when properly stored and used:
8.1.1 conform to and perform in all material respects in accordance with the applicable Goods Specification; and
8.1.2 be free from material defects in design, materials and workmanship.
8.2 Remedy for breach. Subject to Clause 8.3, if:
8.2.1 Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty in Clause 8.1;
8.2.2 Sphere is given a reasonable opportunity of examining such Goods; and
8.2.3 Customer (if asked to do so by Sphere) returns such Goods to Sphere’s place of business at Customer’s risk and cost;
Sphere shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
8.3 Exceptions. Sphere shall not be liable for the Goods’ failure to comply with the warranty in Clause 8.1 if:
8.3.1 the defect arises because Customer failed to follow Sphere’s oral or written instructions as to the storage or use of the Goods or (if or to the extent there are none) good trade practice;
8.3.2 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
8.3.3 the defect arises as a result of use of such Goods with any equipment, Software, parts or accessories not supplied by or approved in writing by Sphere;
8.3.4 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
8.4 No other liability. Except as provided in this Clause 8, Sphere shall have no liability to Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 8.1.
8.5 Application of warranty. This Clause 8 shall apply to any replacement Goods supplied by Sphere under Clause 8.2.
9. LIABILITY
9.1 Certain liability not limited. Nothing in the Contract shall be taken to exclude or restrict the liability of Sphere for:
9.1.1 negligence resulting in death or personal injury;
9.1.2 fraudulent misrepresentation or other fraud;
9.1.3 wilful default; or
9.1.4 any matter for which it would be unlawful to exclude or restrict liability.
All provisions of the Contract that have as their object or effect the exclusion or limitation of Sphere’s liability shall be read subject to this Clause 9.1.
9.2 Limitations of liability. Subject to Clause 9.1:
9.2.1 Sphere shall not in any circumstances be liable for any of the following arising out of or in connection with the Contract: (a) loss of profit or other financial loss; (b) loss of market, loss of goodwill or reputation; (c) loss of or damage to cells or other materials stored, processed or analysed through use of the Goods; (d) loss or damage arising from use of Goods with any equipment, Software, parts or accessories not supplied by or approved in writing by Sphere; (e) loss or damage arising from modifications to Goods made by any person other than Sphere without Sphere’s prior written approval; or (f) any indirect or consequential loss or damage; and
9.2.2 Sphere’s total liability in respect of all causes of action arising out of or in connection with the Contract shall be limited to: (a) replacing defective Goods, or refunding the price of the defective Goods in full, subject to and in accordance with Clause 8; and (b) in addition, no more than £500.
9.3 Scope of limitations of liability. Any provision of the Contract that has as its object or effect the exclusion or limitation of liability shall, unless expressly stated to the contrary in that provision, operate to exclude or limit liability on whatever basis incurred, whether for breach of contract, in tort (including negligence), breach of statutory duty or otherwise.
9.4 Force Majeure.
9.4.1 Sphere shall not be considered in breach of the Contract, or liable for any loss or damage which may be suffered by Customer, as a direct or indirect result of the performance of any of Sphere’s obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond Sphere’s reasonable control (Force Majeure).
9.4.2 If Sphere is affected by Force Majeure it shall:
9.4.2.1 notify Customer in writing of the Force Majeure and the actual or expected effects of it; and
9.4.2.2 use all reasonable efforts to resume performance and continue performance of the affected obligations.
9.5 Sphere’s employees and subcontractors etc. Under no circumstances shall Customer make any claim against any directors, officers, employees, subcontractors or agents of Sphere, or against any other persons connected with Sphere, in any manner under or in connection with the Contract.
10. TERMINATION
10.1 Termination for cause. In addition to any other right or remedy of such Party, either Party may terminate the Contract by giving written notice to the other Party having immediate effect if:
10.1.1 the other Party commits any material breach of any of the terms of the Contract which in the case of a breach capable of remedy is not remedied by such Party within 28 days of the date of a notice to it specifying the breach and requiring its remedy;
10.1.2 the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
10.1.3 the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
10.1.4 a resolution is passed, or an order is made, for the winding up of the other Party;
10.1.5 an order is made for the appointment of an administrator or an administrator is appointed over the other Party;
10.1.6 the other Party makes an assignment for the benefit of creditors, a voluntary arrangement with its creditors or becomes subject to an administration order;
10.1.7 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or to assume the obligations imposed on the other Party under the Contract);
10.1.8 the other Party ceases or threatens to cease to carry on all or substantially all of its business; or
10.1.9 anything analogous to any of Clauses 10.1.3 through 10.1.7 occurs in relation to the other Party in any foreign jurisdiction.
10.2 Material breach partially defined. Without limiting the scope of Clause 10.1.1, a breach of either of Clauses 5 or 6 shall be deemed a material breach.
11. CONSEQUENCES OF TERMINATION
11.1 Accrued rights. Termination of the Contract (however arising) shall be without prejudice to the rights of the Parties accrued prior to termination or to any other right or remedy of either Party.
11.2 Survival of certain terms. All terms of the Contract which in order to give full effect to their meanings need to survive termination of the Contract shall do so. In particular Clauses 4, 5, 6, 8, 9, 11, 12 and 13 shall survive any termination of the Contract.
11.3 Other consequences. Upon any termination of the Contract each Party shall within 14 days return to the other or, if instructed by the other in writing, destroy or delete all documents or records (in any form) and materials recording or otherwise embodying any Confidential Information of the other Party.
12. MISCELLANEOUS
12.1 Announcements/publicity. Neither Party shall issue any press release or other announcement, or otherwise publicise the relationship between the Parties embodied in the Contract, except with the prior written approval of the other Party. Such approval may be given, withheld or conditioned in the other Party’s absolute discretion.
12.2 Variation. No addition, amendment to or modification of the Contract shall be effective unless it is in writing and signed by the duly authorised representative of each Party (e-mail is not sufficient).
12.3 Severability. If any part of the Contract is found to be invalid or unenforceable then such part of the Contract shall be deemed removed from the Contract, but without affecting the remainder of the Contract. However in that event the Parties shall in good faith negotiate and endeavour to agree valid and enforceable replacement terms that as nearly as possible achieve their original intent embodied in the removed part.
12.4 Assignment.
12.4.1 Sphere may without consent assign its rights and obligations under the Contract to any person to whom it transfers all or substantially all of its business and assets.
12.4.2 Subject to Clause 12.4.1, neither Party shall without the prior written consent of the other (which shall not unreasonably be withheld or delayed) assign any of its rights or obligations under the Contract.
12.4.3 The Contract shall bind and shall continue in force for the benefit of any permitted assignee of either Party.
12.5 Notices.
12.5.1 Any notice to be given under the Contract shall be in writing and shall be delivered personally, or sent by facsimile transmission or by commercial courier, to the Party required to receive the notice at its address as set out in the Contract or as may otherwise be specified by the relevant Party by notice in writing to the other Party.
12.5.2 Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the recipient Party’s address, marked for the attention of an officer or employee of the recipient Party known to the Party giving notice; or (b) if sent by facsimile transmission, at 9.00 am on the next business day (in the recipient’s location) after sending, marked for the attention of such officer or employee, with correct transmission confirmed; or (c) if delivered by commercial courier, marked for the attention of such officer or employee, on the date and at the time that the courier’s delivery receipt is signed.
12.5.3 A notice required to be given under the Contract shall not be validly given if sent by e-mail.
12.5.4 The provisions of this Clause 12.5 shall not apply to the service of any proceedings or other documents in any legal action.
12.6 Waiver. No delay by a Party in exercising any right or enforcing any provision of the Contract shall be deemed a waiver of such right or provision.
12.7 Entire agreement. The Contract supersedes any arrangements, undertakings, promises or agreements made or existing between the Parties prior to or simultaneously with the Contract and relating to the subject-matter of the Contract, and constitutes the entire understanding between the Parties in relation to the subject matter of the Contract. Without limiting the scope of the immediately preceding sentence, no terms and conditions incorporated into or referred to in any Customer Order placed by Customer or in any acceptance of a Sphere Quotation, or in any other documentation issued by Customer, shall have any effect. No terms or conditions not expressly set out in the Contract form part of it.
12.8 No partnership, etc. The Contract shall not constitute the Parties partners or either Party the agent of the other for any purpose. The Parties are independent contractors.
12.9 Interpretation. The headings and captions in the Contract (including those at the beginning of Clauses) are for convenience only and shall not affect its interpretation; all references to Clauses are references to clauses in these Conditions; references to a person shall be deemed to include an individual, a company, a partnership or an unincorporated business or other body, whether or not it has separate legal personality; references to a statute or other legislation shall be deemed to include any modification, extension or re-enactment thereof for the time being in force; references importing the singular shall include the plural and vice versa; and words such as in particular, including, for example, such as and etc., or other words indicating that examples falling within more general wording follow, shall not be construed as limiting in any way the scope of the corresponding more general wording.
12.10 Third party rights. All provisions of the Contract that purport to limit or exclude the liability of a Party are intended also to be for the benefit of all directors, officers, employees, subcontractors and agents of such Party, and of any other persons connected with that Party, and shall accordingly be enforceable by each of them as well as or instead of by the applicable Party, and on the basis that any limit on the liability of a Party shall apply to that Party and all those other persons in the aggregate. Subject to the immediately preceding sentence, the Contract is not intended to confer rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no term of the Contract may be enforced by any person who is not a party to the Contract.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in all respects in accordance with the laws of England and Wales.
13.2 Dispute resolution. The Parties shall endeavour to resolve any dispute arising out of or in connection with the Contract by negotiation between their representatives who have the authority to resolve the dispute. The Parties may agree to try and resolve such dispute through mediation, expert determination or other means appropriate to the dispute; and neither Party shall unreasonably refuse to take part in such process. The Parties irrevocably agree that any dispute arising out of or in connection with the Contract or its subject matter or formation (including any non-contractual dispute or claim) that is not resolved by other means shall be subject to the exclusive jurisdiction of the courts of England and Wales.

TERMS AND CONDITIONS OF SUPPLY (DESIGN/DEVELOPMENT CONSULTANCY SERVICES)

SPHERE FLUIDICS LIMITED
TERMS AND CONDITIONS OF SUPPLY
(DESIGN/DEVELOPMENT CONSULTANCY SERVICES)
UPDATED 2023 07 04

1. DEFINITIONS
In these Conditions, and elsewhere in the Contract:
Conditions means these terms and conditions of supply;
Confidential Information has the meaning given it in Clause 7.2;
Contract means the contract between Sphere and Customer that incorporates these Conditions by reference (so that any reference to the Contract automatically incorporates a reference to these Conditions);
Customer means the entity that has entered into the Contract with Sphere, under which Sphere is to supply the Services;
Customer Order means Customer’s written acceptance of the Sphere Quotation;
Deliverables means items to be produced in the Services and delivered to Customer by Sphere, as described in the Sphere Quotation;
Existing CDA means any confidentiality/non-disclosure agreement between the Parties entered into in relation to discussions leading to the Contract that is identified in the Sphere Quotation as an Existing Confidentiality Disclosure Agreement (CDA);
IPR means: any patent or other rights in inventions, copyright (including copyright in computer programs), design right, registered design right, database right or rights in know-how; any equivalent rights in any part of the world; and any applications for the registration of any such rights capable of registration in any part of the world;
Party means Sphere or Customer; and Parties refers to both of them;
Services means the design/development services that are to be supplied by Sphere to Customer under the Contract, as described in the Sphere Quotation;
Sphere means Sphere Fluidics Limited, a company registered in England and Wales with company number 07167872;
Sphere Quotation means the written quotation provided to Customer by Sphere, offering to provide the Services to Customer;
VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;

writing and cognate expressions include a reference to e-mail unless expressly provided to the contrary.
2. BASIS OF CONTRACT
2.1 Sphere Quotation. The Sphere Quotation constitutes an offer by Sphere to Customer to supply the Services in accordance with the Sphere Quotation and these Conditions. Such offer may only be accepted by Customer accepting the Sphere Quotation, in writing by completing the acceptance form comprised in the Sphere Quotation, within 30 days of the date of the Sphere Quotation, or within such longer period as Sphere may in writing agree (for which e-mail will be sufficient).
2.2 Contract. At the time and on the date that Customer accepts the Sphere Quotation as above the Contract shall come into existence. The Contract consists in the Sphere Quotation, these Conditions and any other documents expressly incorporated into the Contract by reference.
2.3 Exclusive terms. The Contract constitutes the entire agreement between the Parties. Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Sphere which is not set out in the Contract.
2.4 No other conditions. These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade custom, practice, course of dealing or otherwise. In particular, if Customer places an order for the Services (or any of them) that are the subject of the Contract and such order incorporates or refers to any other terms and conditions, such order shall be deemed to have been placed as a formality only and such other terms and conditions shall not apply.
3. SERVICES AND DELIVERABLES
3.1 Supply of Services. Sphere agrees to supply the Services to Customer, and Customer agrees to purchase the Services from Sphere, on the terms of the Contract.
3.2 Delivery of Deliverables. Sphere shall deliver the Deliverables to Customer at such location as the Parties agree. Delivery of the Deliverables shall be completed upon the Deliverables’ arrival at the delivery location.
3.3 Risk. The risk in the Deliverables shall pass to Customer upon completion of delivery.
4. OBLIGATIONS OF SPHERE
4.1 Performance. Sphere:
4.1.1 shall perform the Services with reasonable care and skill; and
4.1.2 shall assign to the Services personnel with the appropriate levels of expertise and experience.
Unless expressly stated to the contrary in the Sphere Quotation, Sphere does not guarantee (and shall not be obliged) through the Services or otherwise under the Contract to achieve any technical specification(s) agreed between the Parties in relation to any Deliverable, and any such technical specification(s) shall be deemed to be a target only. Sphere will however use all reasonable efforts to achieve such technical specification(s).
4.2 Timing. Any dates quoted or otherwise agreed for performance of Services or delivery of Deliverables are approximate only, and the time of performance and delivery is not of the essence. Sphere will however use its reasonable efforts to adhere to agreed dates for performance of Services and delivery of Deliverables.
4.3 Subcontracting. Sphere may in its absolute discretion subcontract performance of Services under the Contract. However Sphere shall remain responsible for any subcontracted Services as if it had not subcontracted them.
5. COOPERATION BY CUSTOMER
5.1 Cooperation. Customer shall promptly provide to Sphere such information, access to personnel, access to premises and other cooperation as is specified in the Sphere Quotation or otherwise reasonably required by Sphere in connection with performance of its obligations under the Contract.
5.2 Consequences of failure to cooperate. If and to the extent that failure by Customer to comply with its obligations under the Contract results in Sphere being unable to perform its obligations, Sphere shall not be liable for that failure. If and to the extent that such failure by Customer results in Sphere incurring extra costs or expending extra time or effort in connection with performance of Services, Customer shall pay to Sphere additional amounts calculated in accordance with Sphere’s normal practices at the applicable time.
6. FINANCIAL
6.1 Amounts payable. The amounts to be paid by Customer to Sphere under the Contract shall be the amounts specified in the Sphere Quotation. In addition to the fees for the Services, Sphere shall also be entitled to charge Customer for any reasonable travel, accommodation and subsistence expenses incurred by Sphere in connection with the Services. Sphere shall also be entitled to charge Customer any other amounts payable by Customer under the terms of the Contract.
6.2 Payment. Customer shall pay all amounts payable by it within 30 days of the date of Sphere’s invoice, unless different payment terms are stated in the Sphere Quotation or have otherwise been agreed in writing by the Parties; in which case Customer shall pay such amounts in accordance with those payment terms.
6.3 Manner and currency of payment. Customer shall pay all monies becoming due to Sphere under the Contract by electronic transfer to a bank account nominated by Sphere or by such other means as Sphere may reasonably require. It shall pay them in Pounds Sterling or in such other currency as is specified in the Sphere Quotation, and shall pay them in full without any withholding or deduction because of any set-off, counterclaim, abatement or otherwise.
6.4 VAT. All sums becoming due to Sphere under the Contract are exclusive of any VAT, which (in the case that Sphere is obliged by law to charge VAT) Customer shall pay in addition against Sphere’s VAT invoices.
6.5 Overdue amounts. In addition to any other right or remedy that Sphere may have, if any amount due to Sphere is not paid on time:
6.5.1 if required by Sphere, Customer shall pay interest on the overdue amount at the rate from time to time prescribed by or pursuant to the Late Payment of Commercial Debts (Interest) Act 1998. The interest period shall run from the due date for payment until receipt of the full amount by Sphere, whether before or after any judgement;
6.5.2 Sphere may without liability suspend performance of the Services until receipt of the full amount by Sphere, together with any interest charged as above; and
6.5.3 Customer shall upon demand by Sphere reimburse Sphere all costs and expenses (including legal fees on a full indemnity basis) incurred by Sphere in recovering overdue amounts from Customer.
7. CONFIDENTIALITY
7.1 Existing CDA. The Contract terminates and supersedes the Existing CDA with effect from the date the Contract is entered into. However:
7.1.1 such termination shall not affect any rights or liabilities accrued under the Existing CDA at the date of termination; and
7.1.2 all information that was disclosed by either Party to the other under the Existing CDA and fell within the scope of information required under the Existing CDA to be treated as confidential shall be deemed to be Confidential Information and accordingly shall be treated as such in accordance with the terms of this Clause 7.
7.2 Confidentiality of Confidential Information. Each Party agrees to maintain secret and confidential all information obtained from the other Party, whether pursuant to the Contract or prior to and in contemplation of it, and all other information that it may acquire from the other in the course of the Contract, to respect the other’s proprietary rights in such information, to use it exclusivity for the purposes of or as contemplated by the Contract, and to disclose it only to such persons to whom and to the extent that such disclosure is reasonably necessary for such purposes. In the Contract, and subject to Clause 7.3, the information referred to in the immediately preceding sentence is called Confidential Information. Without limiting the scope of Confidential Information, it shall include: (a), subject to Clause 7.3, and as Confidential Information of Sphere, all know-how and other information concerning Sphere’s products, services, software and otherwise Sphere’s business at any time disclosed to Customer by Sphere; (b) the information referred to in Clause 7.1.2; and (c), as Confidential Information of both Parties, the terms of the Contract.
7.3 Certain information not Confidential Information. Confidential Information excludes information which:
7.3.1 prior to receipt thereof from one Party was in the possession of the other and at its free disposal; or
7.3.2 is subsequently disclosed to the recipient Party free of any obligations of confidentiality by a third party who has not derived it directly or indirectly from the other; or
7.3.3 is or becomes generally available to the public through no act or default of the recipient Party or its employees, subcontractors or agents.
7.4 Mandatory disclosures. If and as soon as a Party becomes aware that it may be obliged by any applicable laws or competent authority to disclose any Confidential Information of the other Party, then it shall (if it lawfully can) so notify the other and shall at the request and cost of the other provide to the other such assistance as the other may reasonably require in taking lawful steps to limit or prevent the disclosure.
7.5 Obligation to pass on obligations of confidentiality. Each Party shall:
7.5.1 procure that all persons to whom it discloses any Confidential Information of the other shall be made aware of and subject to obligations of confidentiality and non-use reflecting this Clause 7; and
7.5.2 use its best efforts to enforce such obligations.
A breach by any of such persons of any of such obligations shall be deemed to be a breach of the Contract by such Party.
7.6 Period of application. This Clause 7 shall continue in force for a period of 5 years from the date the Contract is entered into.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Ownership. All IPR in or arising from the Services, and any other IPR in the Deliverables, shall be owned by Sphere.
8.2 Licences.
8.2.1 If the Services are or include design for Customer of a novel biochip or cartridge then, subject to and with effect from payment by Customer to Sphere of all sums due under the Contract, Customer shall have a non-exclusive, perpetual, fully paid-up and royalty-free licence under all IPR of Sphere in such design, to make and to have made biochips or cartridges in accordance with such design or any derivative thereof.
8.2.2 If the Services are or include development for customer of novel cell lines, biological agents, emulsions or specialist chemicals then, subject to and with effect from payment by Customer to Sphere of all sums due under the Contract, Customer shall have a non-exclusive, perpetual, fully paid-up and royalty free licence under all IPR of Sphere in such cell lines, biological agents or specialist chemicals, to make and to have made cell lines, biological agents, emulsions or specialist chemicals the same as those developed under the Contract, or any derivative thereof.
8.2.3 If the Services are or include development for customer of software, databases or instrumentation then, subject to and with effect from payment by Customer to Sphere of all sums due under the Contract, Customer shall have a non-exclusive, perpetual, fully paid-up and royalty free licence under all IPR of Sphere in such software, databases or instrumentation the same as those developed under the Contract, or any derivative thereof.
8.2.4 In relation to any other Deliverables produced in the Services, and supplied by Sphere under the Contract, Customer shall have a non-exclusive, perpetual, fully paid-up and royalty-free licence under all IPR of Sphere in each such Deliverable, to use and reproduce it for its intended purpose.
8.2.5 All rights not expressly granted in this Clause 8.2 are reserved to Sphere or its licensors.
8.3 Third party IPR.
8.3.1 Sphere shall inform Customer if during the period that it is performing the Services its personnel engaged in performing the Services become aware of any IPR of a third party that they are aware will or may be infringed by use or exploitation by Customer of the Deliverables or other results of the Services. In such case the Parties may agree changes to the Services, or Customer may seek a licence, to avoid the infringement or potential infringement.
8.3.2 Notwithstanding Clause 8.3.1 or anything else in the Contract:
8.3.2.1 it is and shall not be part of the Services to be provided by Sphere, to carry out any searches or to make any enquiries as to the existence of such IPR that will or may be so infringed;
8.3.2.2 Sphere makes no representation and gives no warranty concerning non-infringement of IPR of third parties; and
8.3.2.3 in no circumstances shall Sphere have any responsibility for, or liability in respect of, infringement or alleged infringement of any IPR caused by or connected with the direct or indirect use or exploitation of any Deliverables or other results of the Services.
9. LIABILITY
9.1 Certain warranties excluded. Sphere does not represent or warrant that:
9.1.1 it will through the Services achieve any technical specification agreed between the Parties in relation to any Deliverable, except to the extent expressly stated to the contrary the Sphere Quotation; or
9.1.2 biochips, cartridges, novel cell lines, biological agents, emulsions, specialist chemicals, software or instrumentation made in accordance with any results of the Services will conform with applicable laws or regulations in any territory in which they are used (Sphere provides technical expertise and it is exclusively the responsibility of Customer to ensure that any such item, and any use of the Deliverables and other results of the Services, shall comply with all applicable laws and regulations); or
9.1.3 biochips, cartridges, novel cell lines, biological agents, emulsions, specialist chemicals, software or instrumentation made in accordance with any results of the Services will function or perform as required or expected in all environments or in any particular environment, except to the extent expressly stated to the contrary in the Sphere Quotation.
9.2 Certain liability not limited. Nothing in the Contract shall be taken to exclude or restrict the liability of Sphere for:
9.2.1 negligence resulting in death or personal injury;
9.2.2 fraudulent misrepresentation or other fraud;
9.2.3 wilful default; or
9.2.4 any matter for which it would be unlawful to exclude or restrict liability.
All provisions of the Contract that have as their object or effect the exclusion or limitation of Sphere’s liability shall be read subject to this Clause 9.2.
9.3 Limitations of liability. Subject to Clause 9.2:
9.3.1 Sphere shall not in any circumstances be liable for any of the following arising out of or in connection with the Contract: (a) loss of profit or other financial loss; (b) loss of market, loss of goodwill or reputation; (c) loss of or damage to cells or other materials stored, processed or analysed through use of the Deliverables or any other results of the Services; or (d) any indirect or consequential loss or damage whatsoever arising out of or in connection with the Contract; and
9.3.2 Sphere’s total liability in respect of all causes of action arising out of or in connection with the Contract shall be limited to £5,000.
9.4 Scope of limitations of liability. Any provision of the Contract that has as its object or effect the exclusion or limitation of liability shall, unless expressly stated to the contrary in that provision, operate to exclude or limit liability on whatever basis incurred, whether for breach of contract, in tort (including negligence), breach of statutory duty or otherwise.
9.5 Force Majeure.
9.5.1 Sphere shall not be considered in breach of the Contract, or liable for any loss or damage which may be suffered by Customer, as a direct or indirect result of the performance of any of Sphere’s obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond Sphere’s reasonable control (Force Majeure).
9.5.2 If Sphere is affected by Force Majeure it shall:
9.5.2.1 notify Customer in writing of the Force Majeure and the actual or expected effects of it; and
9.5.2.2 use all reasonable efforts to resume performance and continue performance of the affected obligations.
9.6 Sphere’s employees and subcontractors etc. Under no circumstances shall Customer make any claim against any directors, officers, employees, subcontractors or agents of Sphere, or against any other persons connected with Sphere, in any manner under or in connection with the Contract.
10. TERMINATION
10.1 Termination for cause. In addition to any other right or remedy of such Party, either Party may terminate the Contract by giving written notice to the other Party having immediate effect if:
10.1.1 the other Party commits any material breach of any of the terms of the Contract which in the case of a breach capable of remedy is not remedied by such Party within 28 days of the date of a notice to it specifying the breach and requiring its remedy;
10.1.2 the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
10.1.3 the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
10.1.4 a resolution is passed, or an order is made, for the winding up of the other Party;
10.1.5 an order is made for the appointment of an administrator or an administrator is appointed over the other Party;
10.1.6 the other Party makes an assignment for the benefit of creditors, a voluntary arrangement with its creditors or becomes subject to an administration order;
10.1.7 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or to assume the obligations imposed on the other Party under the Contract);
10.1.8 the other Party ceases or threatens to cease to carry on all or substantially all of its business; or
10.1.9 anything analogous to any of Clauses 10.1.3 through 10.1.7 occurs in relation to the other Party in any foreign jurisdiction.
10.2 Material breach partially defined. Without limiting the scope of Clause 10.1.1, a breach of either of Clauses 6 or 7 shall be deemed a material breach.
11. CONSEQUENCES OF TERMINATION
11.1 Accrued rights. Termination of the Contract (however arising) shall be without prejudice to the rights of the Parties accrued prior to termination or to any other right or remedy of either Party.
11.2 Survival of certain terms. All terms of the Contract which in order to give full effect to their meanings need to survive termination of the Contract shall do so. In particular Clauses 6, 7, 8, 9, 11, 12, 13 and 14 shall survive any termination of the Contract.
11.3 Other consequences. Upon any termination of the Contract each Party shall within 14 days return to the other or, if instructed by the other in writing, destroy or delete all documents or records (in any form) and materials recording or otherwise embodying any Confidential Information of the other Party.
12. NON-SOLICITATION
12.1 Definitions. In this Clause 12 Key Employee means an employee who is not employed in an administrative or secretarial capacity and the loss of whom would have a material detrimental effect on the business of the applicable Party or, as the case may be, a subcontractor of the applicable Party.
12.2 Restrictions on solicitation etc. Neither Party shall:
12.2.1 during the period that the Contract is being performed; or
12.2.2 for a period of 9 months after performance of the Contract has been completed, or the earlier termination of the Contract (as the case may be);
directly or indirectly seek to solicit or entice away for employment or other engagement any Key Employee of the other Party or of any subcontractor of the other Party under the Contract with whom (in either case) the first Party had material contact or dealings in connection with the Contract.
13. MISCELLANEOUS
13.1 Announcements/publicity. Neither Party shall issue any press release or other announcement, or otherwise publicise the relationship between the Parties embodied in the Contract, except with the prior written approval of the other Party. Such approval may be given, withheld or conditioned in the other Party’s absolute discretion.
13.2 Variation. No addition, amendment to or modification of the Contract shall be effective unless it is in writing and signed by the duly authorised representative of each Party (e-mail is not sufficient).
13.3 Severability. If any part of the Contract is found to be invalid or unenforceable then such part of the Contract shall be deemed removed from the Contract, but without affecting the remainder of the Contract. However in that event the Parties shall in good faith negotiate and endeavour to agree valid and enforceable replacement terms that as nearly as possible achieve their original intent embodied in the removed part.
13.4 Assignment.
13.4.1 Sphere may without consent assign its rights and obligations under the Contract to any person to whom it transfers all or substantially all of its business and assets.
13.4.2 Subject to Clause 13.4.1, neither Party shall without the prior written consent of the other (which shall not unreasonably be withheld or delayed) assign any of its rights or obligations under the Contract.
13.4.3 The Contract shall bind and shall continue in force for the benefit of any permitted assignee of either Party.
13.5 Notices.
13.5.1 Any notice to be given under the Contract shall be in writing and shall be delivered personally, or sent by facsimile transmission or by commercial courier, to the Party required to receive the notice at its address as set out in the Contract or as may otherwise be specified by the relevant Party by notice in writing to the other Party.
13.5.2 Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the recipient Party’s address, marked for the attention of an officer or employee of the recipient Party known to the Party giving notice; or (b) if sent by facsimile transmission, at 9.00 am on the next business day (in the recipient’s location) after sending, marked for the attention of such officer or employee, with correct transmission confirmed; or (c) if delivered by commercial courier, marked for the attention of such officer or employee, on the date and at the time that the courier’s delivery receipt is signed.
13.5.3 A notice required to be given under the Contract shall not be validly given if sent by e-mail.
13.5.4 The provisions of this Clause 13.5 shall not apply to the service of any proceedings or other documents in any legal action.
13.6 Waiver. No delay by a Party in exercising any right or enforcing any provision of the Contract shall be deemed a waiver of such right or provision.
13.7 Entire agreement. The Contract supersedes any arrangements, undertakings, promises or agreements made or existing between the Parties prior to or simultaneously with the Contract and relating to the subject-matter of the Contract, and constitutes the entire understanding between the Parties in relation to the subject matter of the Contract. Without limiting the scope of the immediately preceding sentence, no terms and conditions incorporated into or referred to in any Customer Order placed by Customer or in any acceptance of a Sphere Quotation, or in any other documentation issued by Customer, shall have any effect. No terms or conditions not expressly set out in the Contract form part of it.
13.8 No partnership, etc. The Contract shall not constitute the Parties partners or either Party the agent of the other for any purpose. The Parties are independent contractors.
13.9 Interpretation. The headings and captions in the Contract (including those at the beginning of Clauses) are for convenience only and shall not affect its interpretation; all references to Clauses are references to clauses in these Conditions; references to a person shall be deemed to include an individual, a company, a partnership or an unincorporated business or other body, whether or not it has separate legal personality; references to a statute or other legislation shall be deemed to include any modification, extension or re-enactment thereof for the time being in force; references importing the singular shall include the plural and vice versa; and words such as in particular, including, for example, such as and etc., or other words indicating that examples falling within more general wording follow, shall not be construed as limiting in any way the scope of the corresponding more general wording.
13.10 Third party rights. All provisions of the Contract that purport to limit or exclude the liability of a Party are intended also to be for the benefit of all directors, officers, employees, subcontractors and agents of such Party, and of any other persons connected with that Party, and shall accordingly be enforceable by each of them as well as or instead of by the applicable Party, and on the basis that any limit on the liability of a Party shall apply to that Party and all those other persons in the aggregate. Subject to the immediately preceding sentence, the Contract is not intended to confer rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no term of the Contract may be enforced by any person who is not a party to the Contract.
14. GOVERNING LAW AND DISPUTE RESOLUTION
14.1 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in all respects in accordance with the laws of England and Wales.
14.2 Dispute resolution. The Parties shall endeavour to resolve any dispute arising out of or in connection with the Contract by negotiation between their representatives who have the authority to resolve the dispute. The Parties may agree to try and resolve such dispute through mediation, expert determination or other means appropriate to the dispute; and neither Party shall unreasonably refuse to take part in such process. The Parties irrevocably agree that any dispute arising out of or in connection with the Contract or its subject matter or formation (including any non-contractual dispute or claim) that is not resolved by other means shall be subject to the exclusive jurisdiction of the courts of England and Wales.

TERMS AND CONDITIONS OF SUPPLY (EQUIPMENT AND ANCILLARY SERVICES)

SPHERE FLUIDICS LIMITED
TERMS AND CONDITIONS OF SUPPLY
(EQUIPMENT AND ANCILLARY SERVICES)
UPDATED 2023 07 04

1. DEFINITIONS
In these Conditions, and elsewhere in the Contract:
Conditions means these terms and conditions of supply;
Confidential Information has the meaning given it in Clause 9.1;
Contract means the contract between Sphere and Customer that incorporates these Conditions by reference (so that any reference to the Contract automatically incorporates a reference to these Conditions);
Customer means the entity that has entered into the Contract with Sphere, under which Sphere is to supply the Goods and Services;
Customer Order means Customer’s written acceptance of the Sphere Quotation;
Delivery Location means the location for delivery of the Goods specified in the Sphere Quotation or otherwise agreed by the Parties;
Goods means the equipment (including any Software comprised therein or supplied therewith, and any parts thereof) that is to be supplied by Sphere to Customer under the Contract, as described in the Sphere Quotation;
Goods Specification means (a) any technical or other specification for the applicable Goods set out in or expressly referred to in the Sphere Quotation and (b) any description of the applicable Goods and their functionality or performance set out in manuals or instructions for use supplied by Sphere for such Goods;
IPR means: any patent or other rights in inventions, copyright (including copyright in computer programs), design right, registered design right, database right or rights in know-how; any equivalent rights in any part of the world; and any applications for the registration of any such rights capable of registration in any part of the world;
Party means Sphere or Customer; and Parties refers to both of them;
Services means the services ancillary to the Goods that are to be supplied by Sphere to Customer under the Contract, as described in the Sphere Quotation;
Software means sequences of instructions to carry out a process in, or convertible into, a form executable by a computer, and fixed in any tangible medium of expression; but excludes source code or other source materials unless expressly agreed to the contrary in writing by Sphere;
Sphere means Sphere Fluidics Limited, a company registered in England and Wales with company number 07167872;
Sphere Quotation means the written quotation provided to Customer by Sphere, offering to provide the Goods and Services to Customer;
VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;

Warranty Period means the period of 12 months from the date of delivery;
Writing and cognate expressions include a reference to e-mail unless expressly provided to the contrary.
2. BASIS OF CONTRACT
2.1 Sphere Quotation. The Sphere Quotation constitutes an offer by Sphere to Customer to supply the Goods and Services in accordance with the Sphere Quotation and these Conditions. Such offer may only be accepted by Customer accepting the Sphere Quotation, in writing by completing the acceptance form comprised in the Sphere Quotation, within 30 days of the date of the Sphere Quotation, or within such longer period as Sphere may in writing agree (for which e-mail will be sufficient).
2.2 Contract. At the time and on the date that Customer accepts the Sphere Quotation as above the Contract shall come into existence. The Contract consists in the Sphere Quotation, these Conditions and any other documents expressly incorporated into the Contract by reference.
2.3 Exclusive terms. The Contract constitutes the entire agreement between the Parties. Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Sphere which is not set out in the Contract. In particular, any samples, drawings, descriptive matter or advertising issued or published by Sphere are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force, except to the extent they are expressly incorporated into the Contract by reference.
2.4 No other conditions. These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade custom, practice, course of dealing or otherwise. In particular, if Customer places an order for the Goods and/or Services (or any of them) that are the subject of the Contract and such order incorporates or refers to any other terms and conditions, such order shall be deemed to have been placed as a formality only and such other terms and conditions shall not apply.
3. SUPPLY AND DELIVERY
3.1 Supply of Goods. Sphere agrees to supply the Goods to Customer, and Customer agrees to purchase the Goods from Sphere, on the terms of the Contract.
3.2 Delivery. Unless otherwise agreed in writing by the Parties (for which e-mail will be sufficient), Sphere shall deliver the Goods to the Delivery Location. Delivery of the Goods shall be completed upon the Goods’ arrival at the Delivery Location.
4. RISK AND TITLE
4.1 Risk. The risk in the Goods shall pass to Customer upon completion of delivery.
4.2 Title.
4.2.1 Title to the Goods shall not pass to Customer until Sphere has received payment in full (in cash or cleared funds) for the Goods and any other goods or services that Sphere has supplied to Customer; and upon payment of all such sums title to the Goods shall pass to Customer.
4.2.2 Until title to the Goods has passed to Customer, Customer shall: (a) store the Goods separately from all other goods held by Customer so that they remain readily identifiable as Sphere’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Sphere’s behalf from the date of delivery; (d) notify Sphere immediately if it becomes subject to any of the events listed in clauses 13.1.3 through 13.1.9; and (e) give Sphere such information relating to the Goods as Sphere may require from time to time.
4.2.3 Subject to clause 4.2.4, Customer may use the Goods in the ordinary course of its business (but not otherwise) before title to them passes to Customer.
4.2.4 If before title to the Goods passes to Customer it becomes subject to any of the events listed in clause clauses 13.1.3 through 13.1.9 then, without limiting any other right or remedy Sphere may have: (a) Customer’s right to use the Goods in the ordinary course of its business ceases immediately; and (b) Sphere may at any time: (i) require Customer to deliver up all Goods in its possession; and (ii) if Customer fails to do so promptly, enter any premises of Customer or of any third party where the Goods are stored or believed by Sphere to be stored, in order to recover them.
5. SERVICES
5.1 Customisation. If specified in the Sphere Quotation, Sphere will customise the Goods in the manner specified. Unless so specified, the Goods to be supplied will be in accordance with the applicable standard specification of such Goods supplied by Sphere.
5.2 Installation. If specified in the Sphere Quotation, Sphere will install the Goods at the Delivery Location or at such other location as Parties may in writing agree (for which e-mail will be sufficient).
5.3 Training. If specified in the Sphere Quotation, Sphere will provide training to Customer personnel in the use of the Goods. Such training will be provided at such location, over such period, at such time and to such Customer personnel as are specified in the Sphere Quotation or are otherwise agreed in writing by the Parties (for which e-mail will be sufficient).
5.4 Technical support. Unless specified to the contrary in the Sphere Quotation, Sphere will for a period of 12 months from delivery of the Goods provide technical support to Customer in relation to use of the Goods. Such technical support will be provided by e-mail and telephone, on a reasonable efforts basis. All requests for technical support must be made by e-mail to such e-mail address as Sphere may specify. Sphere will use reasonable efforts to respond to any such request within two business days.
6. OBLIGATIONS OF SPHERE
6.1 Performance. Sphere:
6.1.1 shall perform the Services with reasonable care and skill; and
6.1.2 shall assign to the Services personnel with the appropriate levels of expertise and experience.
6.2 Timing. Any dates quoted or otherwise agreed for delivery of Goods or supply of Services are approximate only, and the time of delivery or supply is not of the essence. Sphere will however use its reasonable efforts to adhere to agreed dates for delivery of Goods or supply of Services.
6.3 Subcontracting. Sphere may in its absolute discretion subcontract performance of Services under the Contract. However Sphere shall remain responsible for any subcontracted Services as if it had not subcontracted them.
7. COOPERATION BY CUSTOMER
7.1 Cooperation. Customer shall promptly provide to Sphere such information, access to personnel, access to premises and other cooperation as is specified in the Sphere Quotation or otherwise reasonably required by Sphere in connection with performance of its obligations under the Contract.
7.2 Consequences of failure to cooperate. If and to the extent that failure by Customer to comply with its obligations under the Contract results in Sphere being unable to perform its obligations, Sphere shall not be liable for that failure. If and to the extent that such failure by Customer results in Sphere incurring extra costs or expending extra time or effort in connection with supply of Goods or performance of Services, Customer shall pay to Sphere additional amounts calculated in accordance with Sphere’s normal practices at the applicable time.
8. FINANCIAL
8.1 Amounts payable. The amounts to be paid by Customer to Sphere under the Contract (which may include the price of the Goods, fees and expenses/disbursements) shall be the amounts specified in the Sphere Quotation, subject as follows:
8.1.1 The price of the Goods stated in the Sphere Quotation is EX WORKS (Incoterms 2010).
8.1.2 In addition to the fees for the Services (if any), Sphere shall also be entitled to charge Customer for any reasonable travel, accommodation and subsistence expenses incurred by Sphere in connection with the Services.
8.1.3 Sphere shall also be entitled to charge Customer any other amounts payable by Customer under the terms of the Contract.
8.2 Payment. Customer shall pay all amounts payable by it within 30 days of the date of Sphere’s invoice, unless different payment terms are stated in the Sphere Quotation or have otherwise been agreed in writing by the Parties; in which case Customer shall pay such amounts in accordance with those payment terms.
8.3 Manner and currency of payment. Customer shall pay all monies becoming due to Sphere under the Contract by electronic transfer to a bank account nominated by Sphere or by such other means as Sphere may reasonably require. It shall pay them in Pounds Sterling or in such other currency as is specified in the Sphere Quotation, and shall pay them in full without any withholding or deduction because of any set-off, counterclaim, abatement or otherwise.
8.4 VAT. All sums becoming due to Sphere under the Contract are exclusive of any VAT, which (in the case that Sphere is obliged by law to charge VAT) Customer shall pay in addition against Sphere’s VAT invoices.
8.5 Overdue amounts. In addition to any other right or remedy that Sphere may have, if any amount due to Sphere is not paid on time:
8.5.1 if required by Sphere, Customer shall pay interest on the overdue amount at the rate from time to time prescribed by or pursuant to the Late Payment of Commercial Debts (Interest) Act 1998. The interest period shall run from the due date for payment until receipt of the full amount by Sphere, whether before or after any judgement;
8.5.2 Sphere may without liability withhold any Goods in its possession or under its control and suspend provision of the Services until receipt of the full amount by Sphere, together with any interest charged as above; and
8.5.3 Customer shall upon demand by Sphere reimburse Sphere all costs and expenses (including legal fees on a full indemnity basis) incurred by Sphere in recovering overdue amounts from Customer.
9. CONFIDENTIALITY
9.1 Confidentiality of Confidential Information. Each Party agrees to maintain secret and confidential all information obtained from the other Party, whether pursuant to the Contract or prior to and in contemplation of it, and all other information that it may acquire from the other in the course of the Contract, to respect the other’s proprietary rights in such information, to use it exclusivity for the purposes of or as contemplated by the Contract, and to disclose it only to such persons to whom and to the extent that such disclosure is reasonably necessary for such purposes. In the Contract, and subject to Clause 9.2, the information referred to in the immediately preceding sentence is called Confidential Information. Without limiting the scope of Confidential Information, it shall include: (a), subject to Clause 9.2, and as Confidential Information of Sphere, all know-how and other information concerning Sphere’s products, services, software and otherwise Sphere’s business at any time disclosed to Customer by Sphere; and (b), as Confidential Information of both Parties, the terms of the Contract.
9.2 Certain information not Confidential Information. Confidential Information excludes information which:
9.2.1 prior to receipt thereof from one Party was in the possession of the other and at its free disposal; or
9.2.2 is subsequently disclosed to the recipient Party free of any obligations of confidentiality by a third party who has not derived it directly or indirectly from the other; or
9.2.3 is or becomes generally available to the public through no act or default of the recipient Party or its employees, subcontractors or agents.
9.3 Mandatory disclosures. If and as soon as a Party becomes aware that it may be obliged by any applicable laws or competent authority to disclose any Confidential Information of the other Party, then it shall (if it lawfully can) so notify the other and shall at the request and cost of the other provide to the other such assistance as the other may reasonably require in taking lawful steps to limit or prevent the disclosure.
9.4 Obligation to pass on obligations of confidentiality. Each Party shall:
9.4.1 procure that all persons to whom it discloses any Confidential Information of the other shall be made aware of and subject to obligations of confidentiality and non-use reflecting this Clause 9; and
9.4.2 use its best efforts to enforce such obligations.
A breach by any of such persons of any of such obligations shall be deemed to be a breach of the Contract by such Party.
9.5 Period of application. This Clause 9 shall continue in force for a period of 5 years from the date the Contract is entered into.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership.
10.1.1 All IPR in the Goods, including any IPR in or arising from any customisations of the Goods carried out to meet the requirements of the Contract, and any IPR in any other modification or addition to the Goods, is and shall be owned by Sphere or its third party suppliers or licensors.
10.1.2 All IPR in or arising from the Services shall be owned by Sphere.
10.2 Licences. In respect of any Software comprised in the Goods or supplied with them:
10.2.1 Such Software proprietary to any third party is supplied subject to any licence terms imposed by that third party, and Customer must comply with those licence terms. If no express licence terms are imposed, Customer shall be deemed to have such non-exclusive licence as is reasonably required to use the applicable Software as part of or in conjunction with the Goods, in accordance with the normal use of those Goods.
10.2.2 Such Software proprietary to Sphere is supplied subject to a non-exclusive licence on the following terms:
10.2.2.1 Customer is licensed to use such Software as reasonably required as part of or in conjunction with the Goods, in accordance with the normal use of those Goods.
10.2.2.2 To the extent that such acts may lawfully be prohibited, Customer shall not decompile or otherwise reverse engineer such Software.
10.2.3 All rights not expressly granted in respect of any Software comprised in the Goods or supplied with them are reserved to Sphere or its licensors.
11. WARRANTIES
11.1 Goods warranty. Sphere warrants that the Goods shall when properly stored, installed, commissioned, used and maintained:
11.1.1 conform to and perform in all material respects in accordance with the applicable Goods Specification; and
11.1.2 be free from material defects in design, materials and workmanship.
Notwithstanding anything else in the Contract, the warranty in this Clause 11.1 shall not apply in respect of any of the Goods or parts thereof that are not proprietary to Sphere and were obtained by Sphere from a third party supplier or licensor. Sphere’s only responsibility in respect of such Goods or parts thereof shall be to use its reasonable efforts to obtain from such third party supplier or licensor any replacement, repair or refund to which it may be entitled.
11.2 Remedy for breach. Subject to Clause 11.3, if:
11.2.1 Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty in Clause 11.1;
11.2.2 Sphere is given a reasonable opportunity of examining such Goods; and
11.2.3 Customer (if asked to do so by Sphere) returns such Goods to Sphere’s place of business at Customer’s risk and cost;
Sphere shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
11.3 Exceptions. Sphere shall not be liable for the Goods’ failure to comply with the warranty in Clause 11.1 if:
11.3.1 Customer makes any further use of such Goods after giving notice in accordance with Clause 11.2;
11.3.2 the defect arises because Customer failed to follow Sphere’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if or to the extent there are none) good trade practice;
11.3.3 the defect arises as a result of Sphere following any drawing, design or Goods Specification supplied by Customer;
11.3.4 Customer modifies or repairs such Goods without the written consent of Sphere;
11.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
11.3.6 the defect arises as a result of use of such Goods with any equipment, Software, parts or accessories not supplied by or approved in writing by Sphere;
11.3.7 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
11.4 No other liability. Except as provided in this Clause 11, Sphere shall have no liability to Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 11.1.
11.5 Application of warranty. This Clause 11 shall apply, for the remainder of the applicable Warranty Period, to any repaired or replacement Goods supplied by Sphere under Clause 11.2.
12. LIABILITY
12.1 Certain liability not limited. Nothing in the Contract shall be taken to exclude or restrict the liability of Sphere for:
12.1.1 negligence resulting in death or personal injury;
12.1.2 fraudulent misrepresentation or other fraud;
12.1.3 wilful default; or
12.1.4 any matter for which it would be unlawful to exclude or restrict liability.
All provisions of the Contract that have as their object or effect the exclusion or limitation of Sphere’s liability shall be read subject to this Clause 12.1.
12.2 Limitations of liability. Subject to Clause 12.1:
12.2.1 Sphere shall not in any circumstances be liable for any of the following arising out of or in connection with the Contract: (a) loss of profit or other financial loss; (b) loss of market, loss of goodwill or reputation; (c) loss of or damage to cells or other materials stored, processed or analysed through use of the Goods; (d) loss or damage arising from use of Goods with any equipment, Software, parts or accessories not supplied by or approved in writing by Sphere; (e) loss or damage arising from repairs to or modifications to Goods made by any person other than Sphere without Sphere’s prior written approval; or (f) any indirect or consequential loss or damage; and
12.2.2 Sphere’s total liability in respect of all causes of action arising out of or in connection with the Contract shall be limited to: (a) repairing or replacing defective Goods, or refunding the price of the defective Goods in full, subject to and in accordance with Clause 11; and (b) in addition, no more than £10,000.
12.3 Scope of limitations of liability. Any provision of the Contract that has as its object or effect the exclusion or limitation of liability shall, unless expressly stated to the contrary in that provision, operate to exclude or limit liability on whatever basis incurred, whether for breach of contract, in tort (including negligence), breach of statutory duty or otherwise.
12.4 Force Majeure.
12.4.1 Sphere shall not be considered in breach of the Contract, or liable for any loss or damage which may be suffered by Customer, as a direct or indirect result of the performance of any of Sphere’s obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond Sphere’s reasonable control (Force Majeure).
12.4.2 If Sphere is affected by Force Majeure it shall:
12.4.2.1 notify Customer in writing of the Force Majeure and the actual or expected effects of it; and
12.4.2.2 use all reasonable efforts to resume performance and continue performance of the affected obligations.
12.5 Sphere’s employees and subcontractors etc. Under no circumstances shall Customer make any claim against any directors, officers, employees, subcontractors or agents of Sphere, or against any other persons connected with Sphere, in any manner under or in connection with the Contract.
13. TERMINATION
13.1 Termination for cause. In addition to any other right or remedy of such Party, either Party may terminate the Contract by giving written notice to the other Party having immediate effect if:
13.1.1 the other Party commits any material breach of any of the terms of the Contract which in the case of a breach capable of remedy is not remedied by such Party within 28 days of the date of a notice to it specifying the breach and requiring its remedy;
13.1.2 the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
13.1.3 the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.1.4 a resolution is passed, or an order is made, for the winding up of the other Party;
13.1.5 an order is made for the appointment of an administrator or an administrator is appointed over the other Party;
13.1.6 the other Party makes an assignment for the benefit of creditors, a voluntary arrangement with its creditors or becomes subject to an administration order;
13.1.7 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or to assume the obligations imposed on the other Party under the Contract);
13.1.8 the other Party ceases or threatens to cease to carry on all or substantially all of its business; or
13.1.9 anything analogous to any of Clauses 13.1.3 through 13.1.7 occurs in relation to the other Party in any foreign jurisdiction.
13.2 Material breach partially defined. Without limiting the scope of Clause 13.1.1, a breach of either of Clausess 8 or 9 shall be deemed a material breach.
14. CONSEQUENCES OF TERMINATION
14.1 Accrued rights. Termination of the Contract (however arising) shall be without prejudice to the rights of the Parties accrued prior to termination or to any other right or remedy of either Party.
14.2 Survival of certain terms. All terms of the Contract which in order to give full effect to their meanings need to survive termination of the Contract shall do so. In particular Clauses 4, 8, 9, 10, 11, 12, 14, 15 and 16 shall survive any termination of the Contract.
14.3 Other consequences. Upon any termination of the Contract each Party shall within 14 days return to the other or, if instructed by the other in writing, destroy or delete all documents or records (in any form) and materials recording or otherwise embodying any Confidential Information of the other Party.
15. MISCELLANEOUS
15.1 Announcements/publicity. Neither Party shall issue any press release or other announcement, or otherwise publicise the relationship between the Parties embodied in the Contract, except with the prior written approval of the other Party. Such approval may be given, withheld or conditioned in the other Party’s absolute discretion.
15.2 Variation. No addition, amendment to or modification of the Contract shall be effective unless it is in writing and signed by the duly authorised representative of each Party (e-mail is not sufficient).
15.3 Severability. If any part of the Contract is found to be invalid or unenforceable then such part of the Contract shall be deemed removed from the Contract, but without affecting the remainder of the Contract. However in that event the Parties shall in good faith negotiate and endeavour to agree valid and enforceable replacement terms that as nearly as possible achieve their original intent embodied in the removed part.
15.4 Assignment.
15.4.1 Sphere may without consent assign its rights and obligations under the Contract to any person to whom it transfers all or substantially all of its business and assets.
15.4.2 Subject to Clause 15.4.1, neither Party shall without the prior written consent of the other (which shall not unreasonably be withheld or delayed) assign any of its rights or obligations under the Contract.
15.4.3 The Contract shall bind and shall continue in force for the benefit of any permitted assignee of either Party.
15.5 Notices.
15.5.1 Any notice to be given under the Contract shall be in writing and shall be delivered personally, or sent by facsimile transmission or by commercial courier, to the Party required to receive the notice at its address as set out in the Contract or as may otherwise be specified by the relevant Party by notice in writing to the other Party.
15.5.2 Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the recipient Party’s address, marked for the attention of an officer or employee of the recipient Party known to the Party giving notice; or (b) if sent by facsimile transmission, at 9.00 am on the next business day (in the recipient’s location) after sending, marked for the attention of such officer or employee, with correct transmission confirmed; or (c) if delivered by commercial courier, marked for the attention of such officer or employee, on the date and at the time that the courier’s delivery receipt is signed.
15.5.3 A notice required to be given under the Contract shall not be validly given if sent by e-mail.
15.5.4 The provisions of this Clause 15.5 shall not apply to the service of any proceedings or other documents in any legal action.
15.6 Waiver. No delay by a Party in exercising any right or enforcing any provision of the Contract shall be deemed a waiver of such right or provision.
15.7 Entire agreement. The Contract supersedes any arrangements, undertakings, promises or agreements made or existing between the Parties prior to or simultaneously with the Contract and relating to the subject-matter of the Contract, and constitutes the entire understanding between the Parties in relation to the subject matter of the Contract. Without limiting the scope of the immediately preceding sentence, no terms and conditions incorporated into or referred to in any Customer Order placed by Customer or in any acceptance of a Sphere Quotation, or in any other documentation issued by Customer, shall have any effect. No terms or conditions not expressly set out in the Contract form part of it.
15.8 No partnership, etc. The Contract shall not constitute the Parties partners or either Party the agent of the other for any purpose. The Parties are independent contractors.
15.9 Interpretation. The headings and captions in the Contract (including those at the beginning of Clauses) are for convenience only and shall not affect its interpretation; all references to Clauses are references to clauses in these Conditions; references to a person shall be deemed to include an individual, a company, a partnership or an unincorporated business or other body, whether or not it has separate legal personality; references to a statute or other legislation shall be deemed to include any modification, extension or re-enactment thereof for the time being in force; references importing the singular shall include the plural and vice versa; and words such as in particular, including, for example, such as and etc., or other words indicating that examples falling within more general wording follow, shall not be construed as limiting in any way the scope of the corresponding more general wording.
15.10 Third party rights. All provisions of the Contract that purport to limit or exclude the liability of a Party are intended also to be for the benefit of all directors, officers, employees, subcontractors and agents of such Party, and of any other persons connected with that Party, and shall accordingly be enforceable by each of them as well as or instead of by the applicable Party, and on the basis that any limit on the liability of a Party shall apply to that Party and all those other persons in the aggregate. Subject to the immediately preceding sentence, the Contract is not intended to confer rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no term of the Contract may be enforced by any person who is not a party to the Contract.
16. GOVERNING LAW AND DISPUTE RESOLUTION
16.1 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in all respects in accordance with the laws of England and Wales.
16.2 Dispute resolution. The Parties shall endeavour to resolve any dispute arising out of or in connection with the Contract by negotiation between their representatives who have the authority to resolve the dispute. The Parties may agree to try and resolve such dispute through mediation, expert determination or other means appropriate to the dispute; and neither Party shall unreasonably refuse to take part in such process. The Parties irrevocably agree that any dispute arising out of or in connection with the Contract or its subject matter or formation (including any non-contractual dispute or claim) that is not resolved by other means shall be subject to the exclusive jurisdiction of the courts of England and Wales.

TERMS AND CONDITIONS OF SUPPLY (CYTO-MINE® AND ANCILLARY SERVICES)

SPHERE FLUIDICS LIMITED
TERMS AND CONDITIONS OF SUPPLY
(CYTO-MINE® AND ANCILLARY SERVICES)
UPDATED 2023 07 04

1. DEFINITIONS
In these Conditions, and elsewhere in the Contract:
Conditions means these terms and conditions of supply;
Confidential Information has the meaning given it in Clause 9.1;
Contract means the contract between Sphere and Customer that incorporates these Conditions by reference (so that any reference to the Contract automatically incorporates a reference to these Conditions);
Customer means the entity that has entered into the Contract with Sphere, under which Sphere is to supply the Goods and Services;
Customer Order means Customer’s written acceptance of the Sphere Quotation;
Delivery Location means the location for delivery of the Goods specified in the Sphere Quotation or otherwise agreed by the Parties;
Goods means the Cyto-Mine® and/or Cyto-Cartridge® equipment (including any Software comprised therein or supplied therewith, and any parts thereof) and any Cyto-Surf® consumables that are to be supplied by Sphere to Customer under the Contract, as described in the Sphere Quotation;
Goods Specification means (a) any technical or other specification for the applicable Goods set out in or expressly referred to in the Sphere Quotation and (b) any description of the applicable Goods and their functionality or performance set out in the User Manual supplied or made available by Sphere for such Goods;
IPR means: any patent or other rights in inventions, copyright (including copyright in computer programs), design right, registered design right, database right or rights in know-how; any equivalent rights in any part of the world; and any applications for the registration of any such rights capable of registration in any part of the world;
Party means Sphere or Customer; and Parties refers to both of them;
Patents means (a) the patents and patent applications listed in the schedule to these Conditions, (b) any patent applications anywhere in the world claiming priority from any such patents and patent applications, (c) any patents granted pursuant to patent applications mentioned in (a) or (b) above and/or divided out therefrom and (d) all continuations and continuations in part and extensions, renewals and/or reissues of any such patents or patent applications;
Services means the services ancillary to the Goods that are to be supplied by Sphere to Customer under the Contract, as described in the Sphere Quotation;
Software means sequences of instructions to carry out a process in, or convertible into, a form executable by a computer, and fixed in any tangible medium of expression; but excludes source code or other source materials unless expressly agreed to the contrary in writing by Sphere;
Sphere means Sphere Fluidics Limited, a company registered in England and Wales with company number 07167872;
Sphere Quotation means the written quotation provided to Customer by Sphere, offering to provide the Goods and Services to Customer;
User Manual means the user manual and any other instructions for use supplied or made available by Sphere for the Goods;

VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;

Warranty Period means the period of 12 months from the date of delivery;
writing and cognate expressions include a reference to e-mail unless expressly provided to the contrary.
2. BASIS OF CONTRACT
2.1 Sphere Quotation. The Sphere Quotation constitutes an offer by Sphere to Customer to supply the Goods and Services in accordance with the Sphere Quotation and these Conditions. Such offer may only be accepted by Customer accepting the Sphere Quotation, in writing by completing the acceptance form comprised in the Sphere Quotation, within 30 days of the date of the Sphere Quotation, or within such longer period as Sphere may in writing agree (for which e-mail will be sufficient).
2.2 Contract. At the time and on the date that Customer accepts the Sphere Quotation as above the Contract shall come into existence. The Contract consists in the Sphere Quotation, these Conditions and any other documents expressly incorporated into the Contract by reference.
2.3 Exclusive terms. The Contract constitutes the entire agreement between the Parties. Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Sphere which is not set out in the Contract. In particular, any samples, drawings, descriptive matter or advertising issued or published by Sphere are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force, except to the extent they are expressly incorporated into the Contract by reference.
2.4 No other conditions. These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade custom, practice, course of dealing or otherwise. In particular, if Customer places an order for the Goods and/or Services (or any of them) that are the subject of the Contract and such order incorporates or refers to any other terms and conditions, such order shall be deemed to have been placed as a formality only and such other terms and conditions shall not apply.
3. SUPPLY AND DELIVERY
3.1 Supply of Goods. Sphere agrees to supply the Goods to Customer, and Customer agrees to purchase the Goods from Sphere, on the terms of the Contract.
3.2 Delivery. Unless otherwise agreed in writing by the Parties (for which e-mail will be sufficient), Sphere shall deliver the Goods to the Delivery Location. Delivery of the Goods shall be completed upon the Goods’ arrival at the Delivery Location.
4. RISK AND TITLE
4.1 Risk. The risk in the Goods shall pass to Customer upon completion of delivery.
4.2 Title.
4.2.1 Title to the Goods shall not pass to Customer until Sphere has received payment in full (in cash or cleared funds) for the Goods and any other goods or services that Sphere has supplied to Customer; and upon payment of all such sums title to the Goods shall pass to Customer.
4.2.2 Until title to the Goods has passed to Customer, Customer shall: (a) store the Goods separately from all other goods held by Customer so that they remain readily identifiable as Sphere’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Sphere’s behalf from the date of delivery; (d) notify Sphere immediately if it becomes subject to any of the events listed in clauses 13.1.3 through 13.1.9; and (e) give Sphere such information relating to the Goods as Sphere may require from time to time.
4.2.3 Subject to clause 4.2.4, Customer may use the Goods in the ordinary course of its business (but not otherwise) before title to them passes to Customer.
4.2.4 If before title to the Goods passes to Customer it becomes subject to any of the events listed in clause clauses 13.1.3 through 13.1.9 then, without limiting any other right or remedy Sphere may have: (a) Customer’s right to use the Goods in the ordinary course of its business ceases immediately; and (b) Sphere may at any time: (i) require Customer to deliver up all Goods in its possession; and (ii) if Customer fails to do so promptly, enter any premises of Customer or of any third party where the Goods are stored or believed by Sphere to be stored, in order to recover them.
5. SERVICES
5.1 Customisation. If specified in the Sphere Quotation, Sphere will customise the Goods in the manner specified. Unless so specified, the Goods to be supplied will be in accordance with the applicable standard specification of such Goods supplied by Sphere.
5.2 Installation. If specified in the Sphere Quotation, Sphere will install the Goods at the Delivery Location or at such other location as Parties may in writing agree (for which e-mail will be sufficient).
5.3 Training. If specified in the Sphere Quotation, Sphere will provide training to Customer personnel in the use of the Goods. Such training will be provided at such location, over such period, at such time and to such Customer personnel as are specified in the Sphere Quotation or are otherwise agreed in writing by the Parties (for which e-mail will be sufficient).
5.4 Technical support. Unless specified to the contrary in the Sphere Quotation, Sphere will for a period of 12 months from delivery of the Goods provide technical support to Customer in relation to use of the Goods. Such technical support will be provided by e-mail and telephone, on a reasonable efforts basis. All requests for technical support must be made by e-mail to such e-mail address as Sphere may specify. Sphere will use reasonable efforts to respond to any such request within two business days.
6. OBLIGATIONS OF SPHERE
6.1 Performance. Sphere:
6.1.1 shall perform the Services with reasonable care and skill; and
6.1.2 shall assign to the Services personnel with the appropriate levels of expertise and experience.
6.2 Timing. Any dates quoted or otherwise agreed for delivery of Goods or supply of Services are approximate only, and the time of delivery or supply is not of the essence. Sphere will however use its reasonable efforts to adhere to agreed dates for delivery of Goods or supply of Services.
6.3 Subcontracting. Sphere may in its absolute discretion subcontract performance of Services under the Contract. However Sphere shall remain responsible for any subcontracted Services as if it had not subcontracted them.
7. COOPERATION BY CUSTOMER
7.1 Cooperation. Customer shall promptly provide to Sphere such information, access to personnel, access to premises and other cooperation as is specified in the Sphere Quotation or otherwise reasonably required by Sphere in connection with performance of its obligations under the Contract.
7.2 Consequences of failure to cooperate. If and to the extent that failure by Customer to comply with its obligations under the Contract results in Sphere being unable to perform its obligations, Sphere shall not be liable for that failure. If and to the extent that such failure by Customer results in Sphere incurring extra costs or expending extra time or effort in connection with supply of Goods or performance of Services, Customer shall pay to Sphere additional amounts calculated in accordance with Sphere’s normal practices at the applicable time.
8. FINANCIAL
8.1 Amounts payable. The amounts to be paid by Customer to Sphere under the Contract (which may include the price of the Goods, fees and expenses/disbursements) shall be the amounts specified in the Sphere Quotation, subject as follows:
8.1.1 The price of the Goods stated in the Sphere Quotation is EX WORKS (Incoterms 2010).
8.1.2 In addition to the fees for the Services (if any), Sphere shall also be entitled to charge Customer for any reasonable travel, accommodation and subsistence expenses incurred by Sphere in connection with the Services.
8.1.3 Sphere shall also be entitled to charge Customer any other amounts payable by Customer under the terms of the Contract.
8.2 Payment. Customer shall pay all amounts payable by it within 30 days of the date of Sphere’s invoice, unless different payment terms are stated in the Sphere Quotation or have otherwise been agreed in writing by the Parties; in which case Customer shall pay such amounts in accordance with those payment terms.
8.3 Manner and currency of payment. Customer shall pay all monies becoming due to Sphere under the Contract by electronic transfer to a bank account nominated by Sphere or by such other means as Sphere may reasonably require. It shall pay them in Pounds Sterling or in such other currency as is specified in the Sphere Quotation, and shall pay them in full without any withholding or deduction because of any set-off, counterclaim, abatement or otherwise.
8.4 VAT. All sums becoming due to Sphere under the Contract are exclusive of any VAT, which (in the case that Sphere is obliged by law to charge VAT) Customer shall pay in addition against Sphere’s VAT invoices.
8.5 Overdue amounts. In addition to any other right or remedy that Sphere may have, if any amount due to Sphere is not paid on time:
8.5.1 if required by Sphere, Customer shall pay interest on the overdue amount at the rate from time to time prescribed by or pursuant to the Late Payment of Commercial Debts (Interest) Act 1998. The interest period shall run from the due date for payment until receipt of the full amount by Sphere, whether before or after any judgement;
8.5.2 Sphere may without liability withhold any Goods in its possession or under its control and suspend provision of the Services until receipt of the full amount by Sphere, together with any interest charged as above; and
8.5.3 Customer shall upon demand by Sphere reimburse Sphere all costs and expenses (including legal fees on a full indemnity basis) incurred by Sphere in recovering overdue amounts from Customer.
9. CONFIDENTIALITY
9.1 Confidentiality of Confidential Information. Each Party agrees to maintain secret and confidential all information obtained from the other Party, whether pursuant to the Contract or prior to and in contemplation of it, and all other information that it may acquire from the other in the course of the Contract, to respect the other’s proprietary rights in such information, to use it exclusivity for the purposes of or as contemplated by the Contract, and to disclose it only to such persons to whom and to the extent that such disclosure is reasonably necessary for such purposes. In the Contract, and subject to Clause 9.2, the information referred to in the immediately preceding sentence is called Confidential Information. Without limiting the scope of Confidential Information, it shall include: (a), subject to Clause 9.2, and as Confidential Information of Sphere, all know-how and other information concerning Sphere’s products, services, software and otherwise Sphere’s business at any time disclosed to Customer by Sphere; and (b), as Confidential Information of both Parties, the terms of the Contract.
9.2 Certain information not Confidential Information. Confidential Information excludes information which:
9.2.1 prior to receipt thereof from one Party was in the possession of the other and at its free disposal; or
9.2.2 is subsequently disclosed to the recipient Party free of any obligations of confidentiality by a third party who has not derived it directly or indirectly from the other; or
9.2.3 is or becomes generally available to the public through no act or default of the recipient Party or its employees, subcontractors or agents.
9.3 Mandatory disclosures. If and as soon as a Party becomes aware that it may be obliged by any applicable laws or competent authority to disclose any Confidential Information of the other Party, then it shall (if it lawfully can) so notify the other and shall at the request and cost of the other provide to the other such assistance as the other may reasonably require in taking lawful steps to limit or prevent the disclosure.
9.4 Obligation to pass on obligations of confidentiality. Each Party shall:
9.4.1 procure that all persons to whom it discloses any Confidential Information of the other shall be made aware of and subject to obligations of confidentiality and non-use reflecting this Clause 9; and
9.4.2 use its best efforts to enforce such obligations.
A breach by any of such persons of any of such obligations shall be deemed to be a breach of the Contract by such Party.
9.5 Period of application. This Clause 9 shall continue in force for a period of 5 years from the date the Contract is entered into.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership.
10.1.1 All IPR in the Goods, including any IPR in or arising from any customisations of the Goods carried out to meet the requirements of the Contract, and any IPR in any other modification or addition to the Goods, is and shall be owned by Sphere or its third party suppliers or licensors.
10.1.2 All IPR in or arising from the Services shall be owned by Sphere.
10.2 Licence of Software. In respect of the Software comprised in the Goods or supplied with them, namely Cyto-Mine® Studio Software Suite which is proprietary to Sphere and comprises Cyto-Mine® Instrument Control Software and Cyto-Mine® Data Analysis Software, Sphere grants to Customer upon purchase of the Goods a non-exclusive licence, subject to the following conditions:
10.2.1 Customer is licensed to use such Software as reasonably required as part of or in conjunction with the Goods, in accordance with the normal use of the Goods for their intended purpose and in accordance with the Contract, and no other purpose or use whatsoever.
10.2.2 To the extent that such acts may lawfully be prohibited, Customer shall not decompile or otherwise reverse engineer such Software.
10.2.3 Such licence extends to any person permitted by Customer to use the Goods and will automatically transfer to any person to whom Customer transfers ownership of the Goods. Otherwise, Customer may not grant any sub-licence under it or assign or otherwise transfer it.
10.2.4 All rights not expressly granted in respect of the Software comprised in the Goods or supplied with them are reserved to Sphere or its licensors.
10.3 Licence of Patents. Sphere grants to Customer upon purchase of the Goods a non-exclusive licence under the Patents, subject to the following conditions:
10.3.1 Such licence is limited to normal use of the Goods for their intended purpose and in accordance with the Contract, and no other purpose or use whatsoever.
10.3.2 Such licence extends to any person permitted by Customer to use the Goods and will automatically transfer to any person to whom Customer transfers ownership of the Goods. Otherwise, Customer may not grant any sub-licence under it or assign or otherwise transfer it.
10.3.3 All rights not expressly granted in respect of the Patents are reserved to Sphere.
11. WARRANTY, REMEDY, RESTRICTIONS ON USE
11.1 Goods warranty. Sphere warrants that the Goods shall when properly stored, installed, commissioned, used and maintained:
11.1.1 conform to and perform in all material respects in accordance with the applicable Goods Specification; and
11.1.2 be free from material defects in design, materials and workmanship.
11.2 Remedy for breach. Subject to Clause 11.3, if:
11.2.1 Customer gives notice in writing during the Warranty Period and promptly after discovering that some or all of the Goods do not comply with the warranty in Clause 11.1;
11.2.2 Sphere is given a reasonable opportunity of examining such Goods; and
11.2.3 Customer (if asked to do so by Sphere) returns such Goods to Sphere’s place of business at Customer’s risk and cost;
Sphere shall repair or, at its option, replace the defective Goods, or, at its option, instead refund the price of the defective Goods in full.
11.3 Exceptions. Sphere shall not be liable for the Goods’ failure to comply with the warranty in Clause 11.1, and shall have no obligation under Clause 11.2, if:
11.3.1 Customer makes any further use of such Goods after giving notice in accordance with Clause 11.2;
11.3.2 the defect arises because Customer failed to follow Sphere’s oral or written instructions, including instructions in the User Manual, as to the storage, installation, commissioning, use or maintenance of the Goods or (if or to the extent there are none) good trade practice;
11.3.3 the defect arises as a result of Sphere following any drawing, design or Goods Specification supplied by Customer;
11.3.4 Customer modifies or repairs such Goods without the written consent of Sphere;
11.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
11.3.6 the defect arises as a result of use of such Goods with any equipment, Software, parts or accessories not supplied by or approved in writing by Sphere; or
11.3.7 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
11.4 Appropriate use of the Goods. The Goods are intended to be used for research purposes only and have not been tested or validated by Sphere for any other purpose. In particular, they should not be used for testing related to in vitro medical diagnostics, ex vivo or in vivo therapeutic uses, clinical trials, food safety, water testing, cosmetic safety, or for any other purpose where reliance on the results of use of the Goods has or may have implications for the health or safety of persons or animals. Accordingly, Sphere shall have no liability for any loss or damage whatsoever suffered as a result of or in connection with any such use of the Goods.
11.5 Use of third-party Software for data analysis. Sphere has not validated data produced by use of the Goods as suitable for analysis by third-party Software and cannot warrant that such Software will work or that the results obtained from using it to analyse such data will be correct; and Sphere does not provide any support in relation to any third-party Software.
11.6 No other liability. Except as provided in this Clause 11, Sphere shall have no liability to Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 11.1. Further, such warranty is in lieu of all other warranties and conditions that would or might otherwise apply, including any warranty or condition as to quality or fitness for purpose, and all such other warranties and conditions are excluded to the extent permitted by law.
11.7 Application of warranty. This Clause 11 shall apply, for the remainder of the applicable Warranty Period, to any repaired or replacement Goods supplied by Sphere under Clause 11.2.
12. LIABILITY
12.1 Certain liability not limited. Nothing in the Contract shall be taken to exclude or restrict the liability of Sphere for:
12.1.1 negligence resulting in death or personal injury;
12.1.2 fraudulent misrepresentation or other fraud;
12.1.3 gross negligence;
12.1.4 wilful misconduct; or
12.1.5 any matter for which it would be unlawful to exclude or restrict liability.
All provisions of the Contract that have as their object or effect the exclusion or limitation of Sphere’s liability shall be read subject to this Clause 12.1.
12.2 Limitations of liability. Subject to Clause 12.1:
12.2.1 Sphere shall not in any circumstances be liable for any of the following arising out of or in connection with the Contract: (a) loss of profit or other financial loss; (b) loss of market, loss of goodwill or reputation; (c) loss of or damage to cells or other materials stored, processed or analysed through use of the Goods; (d) loss or damage arising from use of Goods with any equipment, Software, parts or accessories not supplied by or approved in writing by Sphere; (e) loss or damage arising from repairs to or modifications to Goods made by any person other than Sphere without Sphere’s prior written approval; (f) loss or damage arising from use of the Goods other than normal use of the Goods for their intended purpose and in accordance with the Contract; or (g) any indirect or consequential loss or damage; and
12.2.2 Sphere’s total liability in respect of all causes of action arising out of or in connection with the Contract shall be limited to: (a) repairing or replacing defective Goods, or refunding the price of the defective Goods in full, subject to and in accordance with Clause 11; and (b) in addition, no more than £10,000.
12.3 Scope of limitations of liability. Any provision of the Contract that has as its object or effect the exclusion or limitation of liability shall, unless expressly stated to the contrary in that provision, operate to exclude or limit liability on whatever basis incurred, whether for breach of contract, in tort (including negligence), breach of statutory duty or otherwise.
12.4 Force Majeure.
12.4.1 Sphere shall not be considered in breach of the Contract, or liable for any loss or damage which may be suffered by Customer, as a direct or indirect result of the performance of any of Sphere’s obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond Sphere’s reasonable control (Force Majeure).
12.4.2 If Sphere is affected by Force Majeure it shall:
12.4.2.1 notify Customer in writing of the Force Majeure and the actual or expected effects of it; and
12.4.2.2 use all reasonable efforts to resume performance and continue performance of the affected obligations.
12.5 Sphere’s employees and subcontractors etc. Under no circumstances shall Customer make any claim against any directors, officers, employees, subcontractors or agents of Sphere, or against any other persons connected with Sphere, in any manner under or in connection with the Contract.
13. TERMINATION
13.1 Termination for cause. In addition to any other right or remedy of such Party, either Party may terminate the Contract by giving written notice to the other Party having immediate effect if:
13.1.1 the other Party commits any material breach of any of the terms of the Contract which in the case of a breach capable of remedy is not remedied by such Party within 28 days of the date of a notice to it specifying the breach and requiring its remedy;
13.1.2 the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
13.1.3 the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
13.1.4 a resolution is passed, or an order is made, for the winding up of the other Party;
13.1.5 an order is made for the appointment of an administrator or an administrator is appointed over the other Party;
13.1.6 the other Party makes an assignment for the benefit of creditors, a voluntary arrangement with its creditors or becomes subject to an administration order;
13.1.7 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or to assume the obligations imposed on the other Party under the Contract);
13.1.8 the other Party ceases or threatens to cease to carry on all or substantially all of its business; or
13.1.9 anything analogous to any of Clauses 13.1.3 through 13.1.7 occurs in relation to the other Party in any foreign jurisdiction.
13.2 Material breach partially defined. Without limiting the scope of Clause 13.1.1, a breach of either of Clauses 8 or 9 shall be deemed a material breach.
14. CONSEQUENCES OF TERMINATION
14.1 Accrued rights. Termination of the Contract (however arising) shall be without prejudice to the rights of the Parties accrued prior to termination or to any other right or remedy of either Party.
14.2 Survival of certain terms. All terms of the Contract which in order to give full effect to their meanings need to survive termination of the Contract shall do so. In particular Clauses 4, 8, 9, 10, 11, 12, 14, 15 and 16 shall survive any termination of the Contract.
14.3 Other consequences. Upon any termination of the Contract each Party shall within 14 days return to the other or, if instructed by the other in writing, destroy or delete all documents or records (in any form) and materials recording or otherwise embodying any Confidential Information of the other Party.
15. MISCELLANEOUS
15.1 Announcements/publicity. Neither Party shall issue any press release or other announcement, or otherwise publicise the relationship between the Parties embodied in the Contract, except with the prior written approval of the other Party. Such approval may be given, withheld or conditioned in the other Party’s absolute discretion.
15.2 Variation. No addition, amendment to or modification of the Contract shall be effective unless it is in writing and signed by the duly authorised representative of each Party (e-mail is not sufficient).
15.3 Severability. If any part of the Contract is found to be invalid or unenforceable then such part of the Contract shall be deemed removed from the Contract, but without affecting the remainder of the Contract. However in that event the Parties shall in good faith negotiate and endeavour to agree valid and enforceable replacement terms that as nearly as possible achieve their original intent embodied in the removed part.
15.4 Assignment.
15.4.1 Sphere may without consent assign its rights and obligations under the Contract to any person to whom it transfers all or substantially all of its business and assets.
15.4.2 Subject to Clause 15.4.1, neither Party shall without the prior written consent of the other (which shall not unreasonably be withheld or delayed) assign any of its rights or obligations under the Contract.
15.4.3 The Contract shall bind and shall continue in force for the benefit of any permitted assignee of either Party.
15.5 Notices.
15.5.1 Any notice to be given under the Contract shall be in writing and shall be delivered personally, or sent by facsimile transmission or by commercial courier, to the Party required to receive the notice at its address as set out in the Contract or as may otherwise be specified by the relevant Party by notice in writing to the other Party.
15.5.2 Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the recipient Party’s address, marked for the attention of an officer or employee of the recipient Party known to the Party giving notice; or (b) if sent by facsimile transmission, at 9.00 am on the next business day (in the recipient’s location) after sending, marked for the attention of such officer or employee, with correct transmission confirmed; or (c) if delivered by commercial courier, marked for the attention of such officer or employee, on the date and at the time that the courier’s delivery receipt is signed.
15.5.3 A notice required to be given under the Contract shall not be validly given if sent by e-mail.
15.5.4 The provisions of this Clause 15.5 shall not apply to the service of any proceedings or other documents in any legal action.
15.6 Waiver. No delay by a Party in exercising any right or enforcing any provision of the Contract shall be deemed a waiver of such right or provision.
15.7 Entire agreement etc. The Contract supersedes any arrangements, undertakings, promises or agreements made or existing between the Parties prior to or simultaneously with the Contract and relating to the subject-matter of the Contract, and constitutes the entire understanding between the Parties in relation to the subject matter of the Contract. Without limiting the scope of the immediately preceding sentence, no terms and conditions incorporated into or referred to in any Customer Order placed by Customer or in any acceptance of a Sphere Quotation, or in any other documentation issued by Customer, shall have any effect. No terms or conditions not expressly set out in the Contract form part of it. Further, each Party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract.
15.8 No partnership, etc. The Contract shall not constitute the Parties partners or either Party the agent of the other for any purpose. The Parties are independent contractors.
15.9 Interpretation. The headings and captions in the Contract (including those at the beginning of Clauses) are for convenience only and shall not affect its interpretation; all references to Clauses are references to clauses in these Conditions; references to a person shall be deemed to include an individual, a company, a partnership or an unincorporated business or other body, whether or not it has separate legal personality; references to a statute or other legislation shall be deemed to include any modification, extension or re-enactment thereof for the time being in force; references importing the singular shall include the plural and vice versa; and words such as in particular, including, for example, such as and etc., or other words indicating that examples falling within more general wording follow, shall not be construed as limiting in any way the scope of the corresponding more general wording.
15.10 Third party rights. All provisions of the Contract that purport to limit or exclude the liability of a Party are intended also to be for the benefit of all directors, officers, employees, subcontractors and agents of such Party, and of any other persons connected with that Party, and shall accordingly be enforceable by each of them as well as or instead of by the applicable Party, and on the basis that any limit on the liability of a Party shall apply to that Party and all those other persons in the aggregate. Subject to the immediately preceding sentence, the Contract is not intended to confer rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no term of the Contract may be enforced by any person who is not a party to the Contract.
16. GOVERNING LAW AND DISPUTE RESOLUTION
16.1 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in all respects in accordance with the laws of England and Wales.
16.2 Dispute resolution. The Parties shall endeavour to resolve any dispute arising out of or in connection with the Contract by negotiation between their representatives who have the authority to resolve the dispute. The Parties may agree to try and resolve such dispute through mediation, expert determination or other means appropriate to the dispute; and neither Party shall unreasonably refuse to take part in such process. The Parties irrevocably agree that any dispute arising out of or in connection with the Contract or its subject matter or formation (including any non-contractual dispute or claim) that is not resolved by other means shall be subject to the exclusive jurisdiction of the courts of England and Wales.

 

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