Terms & Conditions of Business for Sale of Goods and Services
Definitions
1.1 In these conditions:
HYLAB means Brightwell Dispensers Inc., a Delaware corporation with offices at 9858 Britton Street, Lenexa, KS 66219;
BUYER means the person whose order for Goods and/or Services is accepted by Hylab;
CONDITIONS means Hylab’s standard terms and conditions set out in this document;
CONTRACT means the contract for the purchase and sale of the Goods and/or the supply of the Services;
DELIVERY DATE means the date specified by Hylab upon which the Goods are to be shipped;
GOODS means the articles (including any instalments of the articles or any part for them) which Hylab is to supply in accordance with these Conditions;
INTELLECTUAL PROPERTY means all industrial and intellectual property rights (whether registered or unregistered) including without limitation patents, trademarks, design rights, trade secrets and copyrights and any applications for any of the foregoing;
SERVICES means the design, consultancy, project management or other services to be supplied by Hylab pursuant to these Conditions;
SPECIFICATION means any specification for the Goods or in respect of any Services detailing the Goods and/or Services to be provided by Hylab agreed from time to time in writing between Hylab and the Buyer (or as otherwise deemed agreed under clause 3) including any details of the Goods/Services to be provided, time estimates for reaching relevant stages and relevant payment provisions;
UCC means the Uniform Commercial Code as in effect in the State of Kansas; and
WRITING includes email transmissions.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The clause headings in these Conditions are for convenience only and shall not affect their interpretation.
Basis of Sale
2.1 Any order for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase the Goods and/or Services pursuant to these Conditions and any relevant Specification. If Hylab accepts such an order, Hylab shall issue an acknowledgement of order and a contract shall be deemed to have been created and these Conditions shall apply to that Contract to the exclusion of all other terms and conditions that are different from or additional to these Conditions, including any terms and conditions which the Buyer may purport to apply. For the avoidance of doubt, these Conditions shall (unless otherwise agreed in writing between the parties) apply to each and every Contract for the supply of Goods and/or Services by Hylab to the Buyer and any different or additional terms that are contained in any terms of trading or other similar document forwarded to Hylab by the Buyer after the issuance by Hylab of an acknowledgement of order are hereby rejected and shall not be binding on Hylab, whether or not they would materially alter these Conditions.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and Hylab.
2.3 Hylab’s employees or agents are not authorized to make any representations concerning the Goods or Services unless confirmed by Hylab in writing and Hylab’s liability if any shall be governed by the terms of such written representations. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
2.4 Any advice or recommendation given by Hylab or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by Hylab is followed or acted upon entirely at the Buyer’s own risk.
2.5 Any typographical, clerical or other error or omission in any Specification, drawing or design, or in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by Hylab, shall be subject to correction without any liability on the part of Hylab.
2.6 Certain goods within Hylab’s product range will require the user thereof to accept a User License Agreement prior to use. Where applicable, such User License Agreement will include details as to how any customer data is held, protected and used. Failure to accept the terms of any User License Agreement will result in the relevant goods being incapable of use and Hylab will not be liable for any loss that arises from any refusal to accept any User License Agreement. The terms of the User License Agreement are available upon request and should be considered prior to the Buyer ordering the relevant goods.
Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by Hylab unless and until confirmed in writing by Hylab’s authorized representative by issuance of an acknowledgement of order.
3.2 The Buyer shall be responsible to Hylab for ensuring the accuracy of the terms of any order (including any applicable Specification) submitted by the Buyer, and for giving Hylab any necessary information relating to the Goods and/or Services within a sufficient and reasonable time to enable Hylab to perform the Contract.
3.3 Where Hylab provides any written specification (whether in respect of goods, services or otherwise) or drawings or designs to the Buyer it shall be the sole responsibility of the Buyer to check the accuracy and suitability of the same for the Buyer’s purposes and Hylab provides no warranty in respect of such accuracy or suitability. Unless the Buyer, in writing to Hylab, raises any reasonable objection to any such specification, drawing or design or otherwise requires any reasonable amendment thereto within 14 days of submission to the Buyer (time being of the essence), Hylab shall assume that any such specification, drawing or design has been agreed and approved by the Buyer. Where any specification, drawing or design is agreed and approved (whether expressly or by implication under this clause) any subsequent amendments or alterations proposed by the Buyer may only be made if specifically agreed in writing by Hylab (at Hylab‘s sole discretion) and Hylab shall be entitled to require payment from the Buyer of the reasonable and proper charges and expenses incurred by Hylab in making any subsequent amendments or alterations.
3.4 The Buyer is solely responsible for ensuring that, at or before the time of placing the order, Hylab is made aware in writing of any required standards or tolerances in respect of any Goods to be supplied by Hylab to the Buyer. Hylab shall not be liable for any Goods failing to meet any standards or tolerances required by the Buyer unless Hylab is made aware of the same in writing, at or before the time of placing the order, or subsequently agrees in writing that the Goods will meet such required standards or tolerances.
3.5 The quantity, price, currency, quality and description of and any specification for the Goods shall be those set out in Hylab’s acknowledgement of order or as may be subsequently agreed in writing between Hylab and the Buyer or as provided in clause 3.3.
3.6 A Specification shall set out any Services to be performed by Hylab and shall be agreed in writing between Hylab and the Buyer before any order for the Services is accepted and, in any event, before performance is commenced. Any subsequent variations to a Specification shall be subject to the prior written agreement of the parties. Unless otherwise specified, any fees and expenses payable and any applicable timescales for the provision of the Services shall be estimates only and time shall not be of the essence.
3.7 Hylab reserves the right to make any changes in the Specification for the Goods or the Services which are required to conform with any applicable statutory or other legal requirements or, where any Goods and/or Services are to be supplied to Hylab’s specification, which do not materially affect their quality or performance.
3.8 Except for cancellation pursuant to clauses 4.2 and 6 hereunder, no order which has been accepted by Hylab may be cancelled by the Buyer except with the agreement in writing of Hylab and on terms that the Buyer shall indemnify Hylab in full against all losses (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by Hylab as a result of cancellation.
Price of the Goods and/or Services
4.1 The price of the Goods shall be Hylab’s quoted price or, where no price has been quoted (or a quoted price is no longer valid) the price listed in Hylab’s published price list current at the date of acceptance of the order. All prices quoted are valid for sixty (60) days only, after which time they may be altered by Hylab without giving notice to the Buyer.
4.2 Hylab reserves the right, by giving notice to the Buyer at any time up to thirty (30) days before delivery, to increase the price of the Goods to reflect any increase in the cost of such Goods to Hylab which is due to any factor beyond the control of Hylab (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give Hylab adequate information or instructions; PROVIDED, that the Buyer may cancel this contract within twenty-one (21) days of any such notice from Hylab (time being of the essence).
4.3 Estimates for the fees and expenses payable for the Services and the timescales for payment (if in instalments) shall be as set out in the Specification.
4.4 All prices and fees are exclusive of any sales tax, value added tax, duties, imposts or other similar charges, and any withholding, all of which shall be the sole responsibility of the Buyer.
Terms of Payment
5.1 Subject to any special terms agreed in writing between the Buyer and Hylab, Hylab shall be entitled to invoice the Buyer for the price of any Goods on or at any time after the Goods have been delivered to or, where applicable, made available for collection by the Buyer at Hylab’s premises.
5.2 The Buyer shall pay the price of the Goods within thirty (30) days after the date of invoice, without any deduction or set-off.
5.3 Unless any special terms are agreed in writing between the Buyer and Hylab or contained in the Specification, invoices in respect of fees and expenses for the provision of Services shall be paid no later than thirty (30) days after the date of invoice, without deduction or set-off.
5.4 Time of payment shall be of the essence of the Contract and receipts for payment will be issued only on request.
5.5 If the Buyer fails to make payment in full by close of business on the due date then, without prejudice to any other right or remedy available to Hylab under the UCC or otherwise, Hylab shall be entitled to:
5.5.1 cancel the Contract or suspend any further deliveries of Goods or the provision of any further Services to the Buyer; and
5.5.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of the lesser of 1.5% per month or the maximum rate permitted by law on all accounts overdue, such interest accruing on a daily basis and payable without deduction of tax until payment is made;
5.6 In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and the Buyer shall pay all such charges.
5.7 The Buyer may not withhold payment of any invoice or amount due to Hylab by reason of any legal or equitable right of set off or counterclaim which the Buyer may have or allege to have or for any reason whatsoever.
Delivery of Goods/Services and Force Majeure
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at Hylab’s premises at any time after Hylab has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Hylab (including delivery to the Buyer’s appointed carrier), by Hylab delivering the Goods to that place, and the Buyer shall make all arrangements necessary to take delivery of the Goods wherever tendered for delivery.
6.2 Notwithstanding that Hylab may have delayed or failed to deliver the Goods (or any part of them) by the quoted delivery date, the Buyer shall accept delivery without repudiating this Contract and pay for the Goods in full providing that delivery is tendered by Hylab within two (2) months after the quoted delivery date. Hylab may deliver the Goods in advance of the quoted delivery date on giving reasonable prior notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Hylab to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 The location for the delivery of any Services shall be at Hylab’s premises unless provided otherwise by the relevant Specification.
6.5 Hylab shall not be liable for the consequences of any delay in the delivery of Goods and/or the provision of any Services, and in particular, but without prejudice to the generality of the foregoing, shall be under no liability whatsoever for any delay in delivery or completion caused (directly or indirectly) by any one or more of the following: (a) strikes (b) lockouts (c) fires (d) accidents, whether to personnel or machinery, materials equipment or apparatus (e) defective material (f) lack of availability of material (g) delay through war or civil commotion or terrorism (h) government regulations (I) acts of God, or (j) any other circumstances beyond the control of Hylab.
6.6 If any delay shall occur through any cause mentioned in clause 6.5 above, Hylab reserves the right to defer the delivery date or the provision of Services for a reasonable time having regard to all the circumstances. If such delay occurs, then either party may at its option terminate this Contract by giving to the other party fourteen (14) days prior written notice. The consequences of such cancellation shall be governed by the provisions of clause 6.7 and in no such case shall Hylab be responsible for any loss (whether direct, indirect, or consequential) which may result.
6.7 If either party shall so terminate this Contract, the Buyer shall pay a proportionate part of the Contract price for Goods and/or Services delivered up to the date of termination.
6.8 Where the Goods are delivered by carrier, claims for damage or loss in transit or incomplete delivery (however arising) will not be considered by Hylab unless both Hylab and the carrier are advised by the Buyer within twenty-eight (28) days after the delivery date.
Risk, Property in the Goods and Inspection on Delivery
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer, when:
7.1.1 in the case of Goods to be collected by the Buyer, at the time when Hylab notifies the Buyer that the Goods are available for collection; and
7.1.2 in the case of Goods to be delivered at the Buyer’s premises or such other premises as the Buyer may specify, when the Goods are so delivered; and
7.1.3 in the case of Good delivered to a carrier designated by the Buyer, when the Goods are so delivered.
7.2 Notwithstanding delivery or the passing of risk in the Goods or any other provision contained in these conditions, the legal and equitable title in the Goods shall not pass to the Buyer until:
7.2.1 the Buyer has paid the purchase price plus applicable taxes in full; and
7.2.2 no other sums whatsoever are due from the Buyer to Hylab.
7.3 Until title in the Goods has passed to the Buyer in accordance with clause 7.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for Hylab. The Buyer shall store the Goods (at no cost to Hylab) separately from Goods in its possession and marked in such a way that they are clearly identified as Hylab’s property. The Buyer shall properly protect and insure the Goods.
7.4 Notwithstanding that the Goods remain the property of Hylab pursuant to clause 7.2 the Buyer may sell or use the Goods in the ordinary course of business at full market value for the account of Hylab. Any such sale or use of Hylab’s property by the Buyer shall be on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until title in the Goods passes to the Buyer pursuant to clause 7.2, the entire proceeds of sale or otherwise of the Goods shall be held on a fiduciary basis by the Buyer for Hylab.
7.5 Until such time as title to the Goods passes to the Buyer (and provided the Goods are still in existence and have not been re-sold) Hylab shall be entitled at any time to require the Buyer to deliver up the Goods to Hylab and, if the Buyer fails to do so promptly, Hylab may enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. On the making of such request the rights of the Buyer under clause 7.4 shall cease.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Hylab, but if the Buyer does so all monies owed by the Buyer to Hylab (without prejudice to any other right or remedy of Hylab) shall forthwith become due and payable.
7.7 The Buyer must inspect the Goods upon delivery and report to Hylab in writing any defects or shortage in Goods that is (or would reasonably be expected to be) apparent upon such inspection within 4 weeks of delivery (time being of the essence). Any such Goods shall be deemed accepted upon formal acceptance by the Buyer or upon expiration of such 4-week period. Hylab shall not be liable for any defects in or shortage of such Goods that are not reported in accordance with this clause 7.7. The warranty set out in clause 8 shall not apply to any defects that would be apparent upon such an inspection and which are not reported to Hylab in accordance with this clause.
7.8 In the event the retention of title provisions of this clause 7 are deemed to be ineffective to retain title with Hylab, in addition to any security interest granted by the UCC, the Buyer hereby grants a security interest to Hylab in all Goods and documents related thereto and the proceeds and products therefrom to secure the obligations of the Buyer to Hylab. In case of a default by the Buyer, Hylab may peaceably enter the premises of the Buyer and others to repossess the Goods in which it has a security interest, and the Buyer hereby appoints Hylab as its agent to obtain possession of the Goods and documents related thereto. The Buyer shall not mortgage, pledge, hypothecate, or grant a security interest in any Goods or the proceeds thereof (including cash, accounts, contract rights, instruments and chattel paper) which are the subject of this Contract if payment therefor shall not have been made in full to Hylab.In the event the retention of title provisions of this clause 7 are deemed to be ineffective to retain title with Hylab, in addition to any security interest granted by the UCC, the Buyer hereby grants a security interest to Hylab in all Goods and documents related thereto and the proceeds and products therefrom to secure the obligations of the Buyer to Hylab. In case of a default by the Buyer, Hylab may peaceably enter the premises of the Buyer and others to repossess the Goods in which it has a security interest, and the Buyer hereby appoints Hylab as its agent to obtain possession of the Goods and documents related thereto. The Buyer shall not mortgage, pledge, hypothecate, or grant a security interest in any Goods or the proceeds thereof (including cash, accounts, contract rights, instruments and chattel paper) which are the subject of this Contract if payment therefor shall not have been made in full to Hylab.
Warranties and Liability
8.1 Subject to the conditions and exceptions set out below, Hylab warrants that the Goods will correspond with their Specification at the time of delivery and will be free from defects in material and workmanship for such period as is specified in any quotation for the Goods or in the relevant acknowledgement of order or instruction manual for such Goods. The start date for any warranty period shall be the date of issue of Hylab’s invoice for the relevant goods.
8.2 Hylab warrants that it will use reasonable skill and care in performing any Services in accordance with any relevant Specification but, unless otherwise confirmed in writing by Hylab, provides no warranty that any result or objective can be or will be achieved or attained at all or by any specific date. If Hylab performs any part of the Services negligently or materially in breach of Contract then, at any time within six (6) months after receiving notification from the Buyer of such negligent performance or performance in breach, Hylab shall have the right to re-perform such Services if reasonably practicable, at Hylab’s cost.
8.3 THE ABOVE WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY HYLAB WITH RESPECT TO ANY GOODS OR SERVICES. NO OTHER EXPRESS OR IMPLIED WARRANTY OF ANY KIND, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO ANY GOODS OR SERVICES.
8.4 The above warranties given by Hylab are subject to the following conditions and exceptions:
8.4.1.Hylab shall have no warranty liability or obligation of any kind with respect to Goods or Services if a warranty claim is asserted after the expiration of the applicable warranty period.
8.4.2.Hylab shall have no warranty liability or obligation of any kind with respect to Goods if Hylab is not given the opportunity, after receiving a warranty claim with respect to the Goods, to examine the Goods at its facility.
8.4.3.Hylab shall have no warranty liability or obligation of any kind with respect to defects that are or would reasonably be expected to be apparent on inspection at delivery and which are not reported to Hylab by the Buyer in accordance with clause 7.7.
8.4.4.Hylab shall be under no liability in respect of any defects in the Goods arising from any drawing, design or specification supplied by or approved by the Buyer (either expressly or under the provisions of clause 3.3).
8.4.5.Hylab shall have no warranty liability or obligation of any kind with respect to: (i) Goods that are altered, changed, modified or tampered with in any way, unless the alteration, change or modification is made by or with the written authorization of Hylab, (ii) damage to Goods during or after shipment, (iii) Goods that are not used, operated and/or maintained in accordance with all recommended operating and maintenance instructions and procedures (whether oral or written), (iv) Goods that are not properly installed, unless the installation is performed by Hylab, (v) the failure or substandard performance of Goods that is directly or indirectly attributable to, or directly or indirectly results from or arises out of, the failure or substandard performance of a non-Hylab product, component or part, (vi) the failure or substandard performance of Goods that are directly or indirectly attributable to, or directly or indirectly results from or arises out of, compliance with any design, specification or requirement of the Buyer, (vii) Goods that are used in a manner, with a substance or for a purpose other than the normal manner, substance and purpose for which they are intended or are otherwise subjected to abnormal use or service, including, but not limited to, exposure to unusual heat, cold or moisture, (viii) Goods that are subjected to a power surge, brown out or other similar occurrence, (ix) the failure or substandard performance of Goods that are directly or indirectly attributable to, or directly or indirectly results from or arises out of, normal wear and tear of a rubber or synthetic rubber component or part, or another component or part considered to be expendable, including, without limitation, failures in peristaltic pump heads or peristaltic tubing or rubber seals/valves or for damage arising as a result of chemicals attack (other than chemicals recommended for use with the relevant goods) or to plant material or equipment not manufactured by Hylab in in respect of which the Buyer shall only be entitled to the benefit on any such warranty or guarantee as is given by the manufacturer to Hylab, or (xi) damage that is otherwise caused by the negligence or willful misconduct of the Buyer.
8.4.6.Hylab shall be under no liability under the above warranties (or any other warranty condition or guarantee) if the total price for the Goods or Services has not been paid in accordance with these conditions.
8.5 Hylab makes no warranty and shall have no liability or obligation with respect to goods that are produced or manufactured by third parties or services that are performed by third parties. Any warranty with respect to non-Hylab goods and services shall be limited to a pass-through of the warranties, if any, made by the third party, to the extent such pass through is permitted by such third party.
8.6 Any claims concerning defects in Goods that could not be discovered within the timeframe set forth in clause 7.7must be made in writing and received by Hylab within ten (10) working days from discovery of the defects, and, in any event, not later than ninety (90) days after the Buyer’s receipt of the Goods. Failure of the Buyer to give notice of any claim within the applicable time period specified above shall be deemed an absolute and unconditional waiver of such claim.
8.7 Defective or non-conforming Goods or parts thereof discovered during the warranty periods set forth in this clause 8 shall be repaired or replaced by Hylab without any additional charge and shipped to the Buyer, subject to the terms hereof. The warranty obligation of Hylab under the Contract is limited to the repair or replacement of any part of the Goods which the Buyer shall, within the applicable warranty periods, return to Hylab, with transportation charges prepaid by the Buyer, and which Hylab shall determine upon examination to be defective or not in conformity with the express warranties contained herein. In lieu of repair or replacement, if Hylab elects, Hylab may, upon return of such Goods and after making a determination of non-conformity or defect, keep the Goods and refund the purchase price. The replacement or repair of Goods by Hylab does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period in which defective or non-conforming Goods are in possession of Hylab.
8.8 The Buyer’s remedies shall be limited (even in the event of Hylab’s default of its warranty obligations) exclusively to those provided in this section. In no event shall Hylab and its affiliates have any liability for special, incidental, indirect, consequential or punitive damages, including, but not limited to, lost or unrealized sales, revenues, profits, income, cost savings or business, lost or unrealized contracts, loss of goodwill, damage to reputation, loss of property, loss of material being processed, loss of information or data, loss of production, downtime, or increased costs, even if Hylab is advised or placed on notice of the possibility of such penalties or damages and notwithstanding the failure of any essential purpose of any Goods or Services. In no event shall Hylab and its affiliated companies have any liability in connection with any Goods or Services in an aggregate amount in excess of the price that Hylab received for such Goods or Services.
Indemnity for breach of patent, copyright, design etc. and Intellectual Property
9.1 Provided that the Goods have not been sold or used contrary to Hylab’s instructions and except where the Goods have been produced to the Buyer’s specifications, if any claim is made against the Buyer that the Goods infringe or that their use of sale infringes the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, then, subject to clause 8.6, Hylab shall indemnify the Buyer against losses, damages, costs and expenses awarded against or incurred by the Buyer directly resulting from the claim or paid or agreed to be paid by the Buyer in settlement of the claim provided that:
9.1.1 the Buyer shall ensure that Hylab is given full control of any proceedings or negotiations in connection with any such claim; and
9.1.2 the Buyer shall give Hylab all reasonable assistance for the purposes of any such proceedings or negotiations; and
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such claim or proceedings without the consent of Hylab (which shall not be unreasonably withheld); and
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use his best endeavors to do); and
9.1.5 Hylab shall be entitled to the benefit of and the Buyer shall accordingly account to Hylab for, all damages and costs (if any) awarded in favor of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6 Without prejudice to any duty of the Buyer at common law, Hylab shall be entitled to require the Buyer to take such steps as Hylab may reasonably require to mitigate and reduce any such losses, damages, costs or expenses for which Hylab is to indemnify the Buyer under this clause.
9.2 The Buyer shall indemnify Hylab against all losses, damages, costs or expenses in respect of any infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person arising directly or indirectly from the carrying out of work in accordance with the Buyer’s express or implied specifications.
9.3 Each party shall be the owner of its respective Intellectual Property in any material or product or process which it has created (or the creation of which was undertaken by a third party which it commissioned to create such material or product or process) and which is in existence at the date the relevant contract for the provision of Goods and/or Services is made. Each party agrees not to use any of the Intellectual Property of the other party except for the purposes of the relevant Contract. Where any new material or product or process is created during the course of the provision of any Goods and/or Services under the relevant Contract by either party without involving the use of the other party’s confidential information then, except to the extent that such material or product or process embodies the Intellectual Property of the other party, all Intellectual Property in such new material or product or process shall belong to the party which creates it.
9.4 Unless otherwise agreed in writing, where any new material or product or process is created during the course of the provision of the Goods and/or Services jointly by the parties or by one party using any confidential information of the other then, except to the extent that such material product or process embodies the Intellectual Property of one party, all Intellectual Property in such new material product or process shall belong to the parties jointly who shall at their joint expense take all reasonable steps to protect the same.
Events of Default.
10.1 In addition to any other remedies contained herein, the Buyer agrees that any of the following shall constitute an event of default which shall enable Hylab, at its option, to cancel any unexecuted portion of this Contract or to exercise any right or remedy which it may have under the UCC and other applicable law: (a) the failure of the Buyer to perform any Condition contained herein; (b) any failure of the Buyer to give required notice; (c) the insolvency of the Buyer or its failure to pay debts as they mature, an assignment by the Buyer for benefit of its creditors, the appointment of a receiver for the Buyer or for the materials covered by this Contract or the filing of any petition to adjudicate the Buyer bankrupt; (d) a failure by the Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by Hylab or (e) if Hylab, in good faith, believes that the Buyer’s prospect of performance under this Agreement is impaired. All rights and remedies of Hylab herein are in addition to, and shall not exclude, any rights or remedies that Hylab may have under the UCC and other applicable law.
Export Terms
11.1 Where the Goods are supplied for export from the United Kingdom the Contract shall be governed by Incoterms 2010.
11.2 Payment of all amounts due to Hylab shall be made in the manner set out herein or in Hylab’s acknowledgement of order.
Copyright and design rights
12.1 Hylab reserves all rights protected by statute, license, registration or common law vested in it by way of registered designs, design copyright or trademarks or trade secrets in all documents, drawings, plans or specifications, technical data or formula or any goods or materials written down or manufactured by Hylab and the Buyer shall not reproduce the same or cause or permit them to be reproduced without the written consent of Hylab.
General
13.1 The Buyer shall not assign or transfer or purport to assign or transfer the Contract or the benefit thereof to any third party whatsoever.
13.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that others usual or last known place of business or to such email address as either party may provide to the other expressly for the purposes of the service of notices under the Contract.
13.3 No waiver by Hylab of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 The Contract is not made for the benefit of, nor shall any of its provisions be enforceable by, any person other than the Buyer and Hylab and their respective successors and permitted assignees.
13.5 These Conditions shall not be construed against the party preparing them, but shall be construed as if both parties jointly prepared them, and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the Conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance from these Conditions.
13.6 These Conditions shall be construed and take effect in all respects in accordance with the laws of the State of Kansas (excluding the choice of law provisions thereof), including the provisions of the UCC. The U.N. Convention on the International Sales of Goods shall not apply. Each party agrees to submit to the jurisdiction of the courts of the State of Kansas as regards any claim or matter arising under these Conditions. Except as otherwise set forth herein, all actions, regardless of form, arising out of or related to this transaction or the Goods sold or Services provided hereunder must be brought against Hylab within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice.
