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Catalogue Affimer® Proteins Terms and Conditions
1 INTRODUCTION AND CONTRACT
1.1 Avacta provides Affimer Product according to the Product Data Sheet.
1.2 Avacta has identified that Affimer Products are appropriate for use as tools for research and development purposes only and are not appropriate for in vivo use in humans or animals or as human diagnostics or therapeutic products. The warranty and liability position under the Contract reflects this position and the Customer’s attention is drawn to Clauses 4 and 7 in this regard.
1.3 Avacta’s Affimer Products are only suitable for and made available for purchase to businesses and business users (that is, individuals acting wholly or mainly within their business, craft, trade or profession).
1.4 The definitions and rules of interpretation which appear in the Glossary at the end of the Contract apply to these terms and conditions, and the Contract more generally.
1.5 Avacta’s quotations are not binding and a Contract will only come into force in accordance with Clause 1.6.
1.6 The Contract shall apply to all Affimer Products and are the only terms and conditions upon which Avacta will deal with the Customer in respect of the supply of Affimer Product from the catalogue, whether online or through Avacta’s Sales Department to the entire exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in any quotation, acknowledgement or acceptance of an order, or similar document or implied by law, trade custom, practice or course of dealing shall form part of any contract relating to the supply of the Affimer Product between Avacta and the Customer, and the Customer waives any right which it might otherwise have to rely on such terms or conditions.
1.7 The placing of an Order by the Customer shall constitute the Customer’s acceptance of the terms of the Contract.
PART 1 – AFFIMER PRODUCT
2 ORDERS AND DELIVERY
2.1 The Customer shall place an Order for the Affimer Product. Each Order shall be accepted by Avacta at its discretion and, if accepted, the sale of Affimer Product to the Customer shall be subject to the terms of the Contract. The Order shall become binding on Avacta’s acceptance of the Order in accordance with Clause 1.7 of the Contract. Avacta will issue a purchase order number which must be quoted by the Customer in respect of all dealings under the Contract.
2.2 By placing an Order for the Affimer Product you (the Customer) warrant and represent that you are a business or business user acting wholly or mainly within your business, craft, trade or profession and that you are not acting as a consumer in your personal capacity or for personal purposes.
2.3 Avacta shall deliver the Affimer Product to the Customer at the Delivery Point. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence, nor shall be made of the essence by notice. The Customer shall be responsible for the cost of delivery of the Affimer Product to the Delivery Point.
2.4 Avacta may deliver the Affimer Product by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract for the sale of Affimer Product. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment or to terminate the Contract.
3 TITLE AND RISK
3.1 Risk of loss or damage to the Affimer Product shall pass to the Customer at the Delivery Point.
3.2 Ownership of the Affimer Product shall pass to the Customer on payment of the Price in full and cleared funds.
4 PRODUCT WARRANTIES
4.1 The Product Data Sheet includes Avacta’s quality control processes. The aim of the Product Data Sheet is to define the characteristics of the Affimer Product. Avacta warrants that within the shelf-life the Affimer Product will conform in all material respects with the relevant Product Data Sheet.
4.2 The Customer shall be responsible for making its own assessment of whether the Affimer Product is fit for, suitable and appropriate for the Customer’s intended use.
4.3 The Customer shall not and shall not procure that any third party analyse the Affimer Product to determine its composition or reverse engineer the Affimer Product in any way without Avacta’s prior written approval.
4.4 The Customer shall not use the Affimer Product for in vivo human or animal studies, in human diagnostics or for therapeutic purposes as the Affimer Product is not fit for, suitable or appropriate for such use.
4.5 The Customer shall not resell the Affimer Product or supply the Affimer Product to any third party for monetary gain.
5 SAFETY AND COMPLIANCE
5.1 The Customer shall keep true, accurate and up-to-date records detailing the traceability of each batch number of each Affimer Product. The Customer shall immediately notify Avacta of any:
5.1.1 defect in the Affimer Product that would render the Affimer Product unsafe to any customers or users of such Affimer Product, or cause an unacceptable risk to customers or consumers; or
5.1.2 any error or omission in the instructions for use of the Affimer Product which exposes or may expose users of the Affimer Product or consumers to any risk of death, injury or damage to property; or
5.1.3 any adverse events in respect of the Affimer Product.
5.2 The Customer shall not use the Affimer Product where the shelf-life has expired.
PART 2 – GENERAL
6 PRICES AND PAYMENT
6.1 In consideration for the Affimer Product, the Customer shall pay the Price to Avacta:
6.1.1 in relation to Orders made online, immediately as requested within the online Order process; or
6.1.2 if ordered through Avacta’s Sales Department (as a result of an online, fax or telephone enquiry) within thirty (30) days of the date of the invoice.
6.2 The Customer shall not withhold payment of any amount due to Avacta by way of any set-off, counter-claim, abatement, or other similar deduction. It is a condition of the supply of the Affimer Product that the Customer shall pay the Price strictly in accordance with the payment terms. The Price shall be exclusive of VAT (if applicable), delivery charges, taxes, levies and duties.
6.3 Avacta has the right to withhold or deduct amounts payable under the Contract due to any breach of the Contract by the Customer or to withhold or deduct such sums (by way of set-off or otherwise) owing to Avacta from sums due to the Customer under the Contract. Avacta may charge interest on late payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (and its relevant subordinate legislation, and as amended from time to time).
6.4 If the Customer fails to pay an invoice raised in accordance with the Contract or otherwise breaches any of its obligations under the Contract Avacta shall be entitled to:
6.4.1 suspend or discontinue all or any part of the supply of the Affimer Product;
6.4.2 cancel all or part of any outstanding Order; and/or
6.4.3 refuse to accept any further Orders from the Customer;
and this Clause 6.4 shall be without prejudice to the provisions of Clause 6.3 above.
6.5 The Customer shall not be entitled to any claims, compensation or damages arising out of the valid termination of the Contract notwithstanding any provision or rule of law to the contrary.
6.6 The provisions of Clauses 7 (Liability), 8 (Force Majeure), 9 (Intellectual Property) and 10 (General) shall survive the expiry or termination of the Contract for any reason whatsoever.
7.1 Subject to the Customer’s compliance with Clause 4, any claim by the Customer which is based on any defect in the Affimer Product shall be notified to Avacta within thirty (30) days from the date of dispatch of the Affimer Product. If the Customer does not notify Avacta accordingly, the Customer shall not be entitled to reject the Affimer Product and Avacta shall have no liability whatsoever or howsoever caused or arising for such defect.
7.2 If the Customer notifies Avacta in writing that the Affimer Product does not comply with the warranty in Clause 4.1, Avacta shall be entitled, at its sole option, to:
7.2.1 replace the defective Affimer Product; or
7.2.2 refund (by way of a credit note) the Price paid by the Customer relating to the defective Affimer Product.
For the avoidance of doubt, this shall be the Customer’s sole and exclusive remedy in respect of any defective Affimer Product and in respect of any liability whatsoever or howsoever caused or arising in respect of any defective Affimer Products.
7.3 Subject to Clauses 7.1 and 7.2, and Clauses 7.6 and 7.7, Avacta’s total aggregate liability to the Customer under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty or otherwise will in no circumstances exceed the Price paid by the Customer for the Affimer Product in respect of which the liability arose and the Customer shall have a duty to mitigate any loss and/or damage arising from such claim.
7.4 The Customer acknowledges that the Price charged by Avacta is on the assumption that the liability of Avacta and the Customer is as set out in the Contract. The Customer is advised to insure against any risk not accepted by Avacta.
7.5 Save as provided in section 12 of the Sale of Goods Act 1979 and as provided in Clauses 1.2, and 4.1, all warranties, conditions and other terms (including those relating to fitness for a particular purpose, satisfactory quality, and description) implied by statute, common law, trade custom and industry practice are, to the fullest extent permitted by law, excluded from the Contract.
7.6 Nothing in the Contract excludes or limits the liability of either party for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law, including for breach of any obligation implied by Section 12 of the Sale of Goods Act 1979 (as amended), Section 2 of the Supply of Goods and Services Act 1982 nor for damage caused by defective products within the meaning of the Consumer Protection Act 1987 Part 1.
7.7 Avacta shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any:
7.7.1 loss of profit, revenue, business, savings and/or goodwill (whether direct or indirect); or
7.7.2 indirect or consequential loss, arising under or in connection with the Contract; and each type of loss under this Clause 7.7 shall be severable in accordance with Clause 10.5.
8 Force Majeure
8.1 Neither party shall have any liability under, or be deemed to be in breach of, the Contract as a result of any delays or failures in performance which result from a Force Majeure Event.
8.2 If either party is affected by a Force Majeure Event, it will promptly notify the other party in writing, advising of the circumstances causing the delay or the failure to perform, and shall again notify the other party in writing when the circumstances have ceased to cause the delay or the failure to perform.
8.3 If the Force Majeure Event continues for more than thirty (30) days, either party may terminate or cancel all or any part of an order, by giving written notice to the other party.
9 INTELLECTUAL PROPERTY
9.1 Avacta shall retain ownership of all IPR (including any and all Improvements) and nothing in the Contract will be deemed to grant to the Customer any right, title or interest whatsoever in the IPR, except as set out in Clause 9.4 below.
9.2 The Customer shall not be entitled to use Avacta’s brand, trade marks, trade name, get-up and/or logos.
9.3 The Contract is personal to the Customer. The Customer shall not assign, transfer, dispose of in any way its rights and obligations under the Contract.
9.4 Avacta hereby grants to the Customer a non-exclusive, royalty free, non-sub-licensable, non-transferrable licence to the Avacta Patents to the extent necessary in order to enable the Customer to use the Affimer Product sold under the Contract for use in the Customer’s internal in vitro research and development purposes only. Any supply of the Affimer Product for the commercialisation of the Affimer Product shall be subject to a separate agreement between the parties. Avacta excludes all warranties relating to the Avacta Patents to the extent permissible by applicable law.
9.5 Any and all Improvements created or arising out of the Contract shall be owned by Avacta to the extent permitted by law and the Contract shall act as a present assignment of all Improvements by the Customer to Avacta or by way of a present assignment of future rights. To the extent that the foregoing of this Clause 9.5: (i) is not permitted by law within the European Economic Area (EEA); and (ii) to the extent that such Improvements are created within the EEA only; and (iii) only if the United Kingdom remains within the EEA; the Customer shall grant to Avacta a non-exclusive, perpetual, assignable, irrevocable and royalty free licence to use, adapt, sub-licence, and modify such Improvements and the first sentence of this Clause 9.5 shall be severable in accordance with Clause 10.5.
10 GENERAL PROVISIONS
10.1 The Customer 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 or any other sales terms provided by Avacta from time to time and the Contract and any other sales terms provided by Avacta, together with the Order constitute the whole Contract between the parties and supersede all previous contracts between the parties relating to its subject matter. The Customer irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or rescind the Contract by reason of any misrepresentation (other than fraudulent misrepresentation) not contained in the Contract. The Customer’s standard terms and conditions of purchase are expressly excluded from the Contract.
10.2 No amendment or variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
10.3 Any notice required to be given under the Contract, shall be in the English language, in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice at its registered address as set out in the Order.
10.4 Except as expressly provided, nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party. A person who is not a party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
10.5 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
10.6 Each party shall be responsible for the payment of its own costs (and not those of the other party) in connection with the Contract.
10.7 The Contract and any and all matters arising under or in connection with the Contract shall be governed by and construed in accordance with English law and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising under or in connection with it (whether in contract or in tort).
10.8 Each party will comply (to the extent that they apply) with applicable laws relating to anti-corruption, anti-trust and anti-money laundering and each of the arties shall have in place and maintain, Adequate Procedures designed to prevent any act of bribery (as that term is defined in the Bribery Act 2010) being committed by each of the respective parties (and its Associated Persons, as defined in the Bribery Act 2010). Each of the parties will not at any time, do anything that could contravene the Bribery Act 2010 (or any equivalent legislation in a relevant jurisdiction). Any breach of this clause shall be deemed to be a material breach of the Contract.
11. DATA PROTECTION
11.1 All definitions in this Clause have the meaning given to them under the Data Protection Legislation.
11.3 To the extent applicable under Data Protection Legislation, each party shall keep a record of: (i) the subject matter and duration of the processing; (ii) the nature and purpose of the processing; (iii) the type of personal data and categories of data subject; and (iv) the obligations and rights of the data controller.
11.4 To the extent that a party is acting as a data processor, it shall:
11.4.1 only act on the written instructions of the controller (unless required by law to act without such instructions);
11.4.2 ensure that its personnel processing the data are subject to a duty of confidence;
11.4.3 take appropriate measures to ensure the security of processing;
11.4.4 only engage a sub-processor with the prior written consent of the data controller and subject to a written contract;
11.4.5 assist the data controller in providing subject access and allowing data subjects to exercise their rights under the GDPR;
11.4.6 assist the data controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;
11.4.7 delete or return all personal data to the controller as requested on the expiry or termination of this Agreement; and
11.4.8 submit to audits and inspections, provide the controller with whatever information it needs to ensure compliance with Article 28 GDPR obligations, and inform the controller immediately if it is required to do something infringing the GDPR or other data protection law of the EU or a member state.
11.5 Nothing in this Agreement shall exclude or limit either party’s direct liability under the Data Protection Legislation.
Affimer® means Avacta’s product which are small proteins that are derived from the cystatin protein fold and contain multiple regions that can be independently engineered;
Affimer Product means Avacta’s non-antibody affinity reagent product known as Affimers® available via the Catalogue to be supplied by Avacta to the Customer;
Avacta means Avacta Life Sciences Limited (company number: 06605196) whose registered office is at Unit 20, Ash Way, Thorp Arch Estate, Wetherby, West Yorkshire, LS23 7FA, England;
Avacta Patents means registered patent number WO2006/131749 and WO2009/136182;
Catalogue means the online Affimer Product catalogue as set out on www.avactalifesciences.com;
Contract means these Terms and Conditions together with the completed Order; Customer means you or otherwise the entity that you act for as the purchaser of the Affimer Product;
Data Protection Legislation means the General Data Protection Regulation (GDPR); ICO Guidance and EU Article 29 Working Party Guidance (to the extent that EU law remains applicable), as amended from time to time;
Delivery Point means either the delivery address specified by the Customer in the Order, or, in the absence of any such specification, ex works at Avacta’s site;
Force Majeure Event means an event or circumstances beyond the reasonable control of the affected party including riot, war, fire, act of God, flood or earthquake, power failure, shortage of labour or supplies, interruption or disruption to the supply of component products, supply chain issues, acts of terrorism, insurrection, acts of government and, which by its nature, could not have been foreseen by it or, if it could have been foreseen, was unavoidable by a reasonable and prudent business;
Improvements means mutations, genetic modifications, any other change to the primary sequence of the Affimer Product or extensions to the Affimer Product and/or any improvement to the Avacta Patents created by either party directly, indirectly or as a consequence of the Contract;
Intellectual Property Rights means any and all patents, trade marks, service marks, registered designs, domain names, applications for any of the foregoing, trade or business names, unregistered trade marks and service marks, copyright, moral rights, rights in data and databases, rights in designs and inventions, utility models, know-how, processes, formulae, confidential information, improvements, rights under licences, consents, orders, statute or otherwise in relation to any such rights and rights of the same or similar effect or nature, in any part of the world whether now known or future;
IPR means any and all Intellectual Property Rights in existence and owned (or licensed) by Avacta;
Order means either (i) a completed and submitted order form for the Affimer Product made through the websitewww.avactalifesciences.com; or (ii) the information set out in a written purchase order for the Affimer Product submitted to Avacta’s Sales Department [via email] and summarised in an order form;
Price means the purchase price of the Affimer Product as displayed in the Catalogue and specified in the Order;
Product Data Sheet means Avacta’s specification in respect of the Affimer Product including technical performance data and material data safety sheets provided with the Affimer Products and available on Avacta’s web site.
- In these Terms and Conditions:
- words expressed in the singular shall include the plural and vice versa;
- words referring to a particular gender include every gender;
- references to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership, joint venture, government, state or agency of state;
- the words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible;
- references to any statute or statutory provision shall include: (i) any subordinate legislation made under it; (ii) any provision which it has modified or re-enacted (whether with or without modification); and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification) whether made before or after the date of your appointment; and
- any defined terms that are not in this Glossary shall have the meaning given to them in the Order.
- Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
- Headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of the Conditions.
- If there is a conflict between the provisions of the documents which together form the Contract, the order of priority shall be: (i) these Terms and Conditions; (ii) the Order; (iii) Product Data Sheet; and (iv) and other document referred to therein.