Terms and Conditions for the Sale of Equipment by AstraZeneca via EquipNet
(the Terms and Conditions)
These are the Terms and Conditions which shall apply to sales of Equipment by AstraZeneca via EquipNets sales channels, which you (the Purchaser) is required to accept before any bid for Equipment sold via EquipNet will be accepted by AstraZeneca. The Purchasers general terms and conditions or other additional or varying terms issued by the Purchaser or included in any payment documentation are hereby excluded.
Purchaser agrees to purchase from AstraZeneca and AstraZeneca agrees to sell to Purchaser the Equipment on the terms and conditions set out below.
Unless otherwise specifically provided in these Terms and Conditions, the following terms shall have the following meanings:
1.1?Agreement?means these Terms and Conditions electronically accepted by the Purchaser as part of EquipNets sales channel processes together with (i) any amendments thereto agreed by AstraZeneca in writing; and (ii) any document specifically referred to in these Terms and Conditions.
1.2?Affiliates?means any company or partnership that controls, is controlled by or is under common control with AstraZeneca.
1.3?AstraZeneca?means AstraZeneca AB or any of its Affiliates which is the owner of the Equipment and which has posted it on the sales channel made available by EquipNet.
1.4?Documentation?means documents whether in printed, electronic or other form, including but not limited to drawings, operation and maintenance manuals, spare part lists and certificates.
1.5?Equipment?means the industrial or technology equipment or other equipment which has been posted by AstraZeneca on one of EquipNets sales channels and for which Purchaser has made a bid or other offer of purchase to AstraZeneca.
1.6?EquipNet?means the company EquipNet, Inc. of 5 Dan Rd., Canton, MA 02021, United States of America, who shall act as broker for the sale.
1.7?Price?means the total price for the Equipment as set out in Article?3.
1.7.1?Site?means the place where the Equipment is located.?
2.1?Purchaser is familiar with and has long experience of machines and equipment similar to the Equipment.?Purchaser acknowledges and accepts that the Equipment is, and is being sold as, used equipment.?Purchaser has been given the opportunity to inspect?the Equipment together with the Documentation and accepts its current condition.?If Purchaser chooses not to inspect the Equipment, this shall be at Purchasers own risk.
2.2?Where photographs, drawings or samples of the Equipment are taken or given, no representation, warranty or condition as to the conformity of the bulk of the Equipment with the photographs, drawings or samples is given by AstraZeneca or is to be implied.
2.3?AstraZeneca will perform a basic clean of the Equipment, but AstraZeneca does not take any responsibility for any possible remaining contamination to the Equipment, e.g. of chemicals or pharmaceutical substances.
2.4?Unless otherwise agreed between the Parties in writing,?AstraZeneca is responsible for the dismantling of the Equipment at the cost of the Purchaser. Where it has been agreed that Purchaser shall dismantle the Equipment, Purchaser shall have appropriate insurance covering third party liabilities, and such insurance amount shall not be less then?Two Million (2,000,000) Euros.
3.1?The Price shall be (i) the bid Purchaser placed on the sales channel provided by EquipNet which has been accepted by AstraZeneca; and (ii) any cost for the dismantling and packaging of the Equipment. In addition, the Purchaser recognises and agrees that the Purchaser is solely responsible to pay any separate purchasers commission which Purchaser has agreed to pay directly to EquipNet.
3.2?The Price is fixed,?i.e. the Price will not be adjusted according to changes in currency, index or other factors, and is expressed exclusive of Value Added Tax (VAT), which the Purchaser will pay to AstraZeneca at the prevailing rate.
4.1?The payment of the Price shall be made to EquipNet in the currency which the Price was expressed in on the sales channel provided by EquipNet, as set out in the invoice issued by AstraZeneca to the Purchaser.?When Purchaser pays the invoice, Purchaser shall reference AstraZenecas invoice and if applicable any invoice sent to Purchaser by EquipNet.
4.2?Purchaser shall pay EquipNet not later than thirty (5) calendar days from the date of the invoice.
4.3?Right and title to the Equipment will pass to Purchaser upon delivery in accordance with Section?5. AstraZeneca shall not be obliged to deliver or make available the Equipment for collection until full payment of the Price has been received. Right and title will pass directly from AstraZeneca to the Purchaser. For the avoidance of doubt, EquipNet will not take right or title at any time.
4.4?In the event of delayed payment, AstraZeneca is entitled to interest for late payment based on the actual time of delay and calculated at an annual rate of six (6) percentage units above reference rate set from time to time by HSBC UK.
5.1?The Equipment shall be delivered FCA the Site (Incoterms 2000).?No packaging, packaging material or transportation is included in the Price and shall where applicable be charged separately. Any such additional charge shall be paid by Purchaser to AstraZeneca not later than thirty (30) calendar days from the date of the invoice.
6.1?Documentation is included in the purchase and will be delivered to Purchaser together with the Equipment only to the extent expressly stated in the description of the Equipment on EquipNets applicable sales channel.
7.1?Purchaser represents and warrants that it has all necessary licences for the purchase of the Equipment.
7.2?Purchaser represents and warrants that the Equipment will not be used for any illegal purposes such as (but not limited to):
7.2.1?Use of the Equipment in relation to the research, development, manufacture or deployment of Weapons of Mass Destruction (WMD) (see Article 4 of EC Regulation?428/2009 (or relevant subsequent legislation.); and
7.2.2?Production or distribution of illegal, counterfeit, infringing, unlicensed or otherwise illicit drugs.
7.3?Purchaser represents and warrants that should Purchaser ever export the Equipment from one country to another, Purchaser will:
7.3.1?Check, comply with and obtain all necessary licenses for export as required by applicable legislation. In the European Union, this includes, but is not limited to, EC Regulation 428/2009 (including subsequent amendments). In the United Kingdom, this includes but is not limited to the UK Strategic Export Control Lists - The consolidated list of strategic military and dual-use items that require export authorisation.?In Sweden, this includes but is not limited to?Lag (2000:1064) om kontroll av produkter med dubbla anvndningsomrden och tekniskt bistnd?and?Frordning (2000:1217) om kontroll av produkter med dubbla anvndningsomrden och tekniskt bistnd, including any regulations issued hereof by the Swedish Agency for Non-Proliferatiory and Export Controls (Sw: Inspektionens fr strategiska produkter(ISP)).
7.3.2?Comply with any other trade controls, embargoes or
sanctions relating to the intended destination of the Equipment.
7.4?PURCHASER ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT, INCLUDING ANY DOCUMENTATION, IS SOLD AS IS AND WHERE IS, WITHOUT REPRESENTATION OR WARRANTY , EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY PARTICULAR PURPOSES OR ANY WARRANTY THAT THE USE OF THE EQUIPMENT WILL NOT INFRINGE OR VIOLATE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY. FURTHER, ASTRAZENECA MAKE NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, QUANTITY, VALUE OR CONDITION OF THE EQUIPMENT OR ITS SUITABILITY FOR ANY USE.
7.5?AstraZenecas employees and agents, including EquipNet, are not authorised to make any representations in relation to the Equipment.
8.1?Neither party has any obligation, duty or liability in contract or tort (including negligence), other than those stated in this Agreement.
8.2?Neither party excludes or restricts its liability for death or personal injury resulting from its negligence.
8.3?AstraZenecas maximum liability to Purchaser under this Agreement is limited to refunding the Price or, at AstraZenecas option, providing an appropriate allowance against the Price in respect of any loss, damage or defect to the Equipment to the extent AstraZeneca is liable for such loss, damage or defect.
8.4.1?defects or damage to the Equipment occurring prior to Purchasers inspection as detailed in Clause 4.1 (or if no inspection is carried out, prior to acceptance by Purchaser of this Agreement);
8.4.2?shortfalls in quantity, defects or damage to the Equipment which Purchaser notice or reasonably should have noticed, if Purchaser fails to notify AstraZeneca in writing of the same within 3 days of the date of delivery or collection;
8.4.3?other defect or damage to the Equipment which it is not possible for Purchaser as an expert with?long experience of machines and equipment similar to the Equipment to ascertain by detailed examination, if Purchaser fails to notify AstraZeneca in writing of the same within two weeks of discovery;
8.4.4?the damage or defect has arisen as a result of Purchasers misuse, willful damage, neglect, carelessness, lack of proper care or maintenance, failure to follow any instructions given by AstraZeneca or other commotion or disturbance of whatever nature whether affecting the Equipment which is the subject of the claim directly or indirectly or as the result of any such matter affecting the place where the Equipment is stored; and
8.4.5?damage or defect caused as a result of AstraZenecas compliance with any of Purchasers requirements or requests in the handling or storage of the Equipment.
8.5?AstraZeneca shall in no circumstances be liable to Purchaser, whether in contract or tort (including but not limited to negligence) or by reason of statutory duty or otherwise for any or indirect or consequential loss or damage howsoever arising and of whatsoever nature (including but not limited to loss of profit, loss of contract, loss of business or any other form of economic loss whatsoever) suffered or incurred by Purchaser.
9.1?Purchaser shall indemnify and hold AstraZeneca harmless against all claims in respect of any loss; injury; or damage sustained by any third party arising from the sale of the Equipment to Purchaser; the use of the Equipment by Purchaser howsoever caused; or sustained by AstraZeneca due to the further export by the Purchaser of the Equipment.
10.1?Should Purchaser be delayed beyond any time for delivery in accordance with Section?5?which has been notified by AstraZeneca?to Purchaser, AstraZeneca shall be entitled to dispose of the Equipment in any manner AstraZeneca deems fit at Purchasers cost and risk.
10.2?If Purchaser does not fulfil its obligation to pay the invoiced Price within ten (10) days after AstraZenecas written notice of late payment, AstraZeneca may terminate this Agreement with immediate effect.
10.2.1?The provisions in this Article 10 are in addition to any other legal rights and remedies available to AstraZeneca under applicable law.
10.2.2?Purchaser shall not be entitled to cancel whether wholly or partially this Agreement.
11.1?The following provision shall apply if Purchaser and AstraZeneca have separately agreed in writing that Purchaser shall collect any Equipment at AstraZenecas site in addition to any other terms. If there is a conflict between these terms and any other agreed terms these terms shall prevail.
11.2?Purchaser is strictly responsible for its personnel?and subcontractors present at the Site.
11.3?Purchaser undertakes to strictly adhere to AstraZenecas?instructions and to procure its personnel and sub-contractors having access to the Site to observe and adhere to the obligations set forth in this Article?11.
11.4?In addition to Section?11.3, Purchaser undertakes to strictly adhere to, and to procure that its personnel and sub-contractors strictly adhere to, rules and instructions, including signs and notices at the Site.
11.5?AstraZeneca shall have the right to require Purchaser or Purchasers servants, agents or employees to be removed from the Site if Purchaser or they fail to comply with such works rules and safety requirements or have misconducted themselves, or have been negligent or incompetent in the absolute discretion of AstraZeneca.
11.6?If Purchaser finds any instruction given by AstraZeneca to be unclear or insufficient in any respect, Purchaser shall immediately notify AstraZeneca thereof.
11.7?Purchaser shall be responsible for the suitability and safety of any equipment it uses.
11.8?Purchaser shall indemnify AstraZeneca against all liabilities, losses, demands, damages, costs, claims, expenses and interest made against or suffered or incurred by AstraZeneca arising out of or in connection with Purchasers operations on the Site in connection with this Agreement.
12.1?Confidential information (hereafter called?Confidential Information) shall mean any and all information and data about AstraZeneca or its Affiliates, products, personnel, research and development work, and business or operating conditions that is disclosed to Purchaser in any form including, without limitation, orally, in writing, stored electronic form or which Purchaser may otherwise observe and learn in relation to this Agreement; the Equipment or the use of EquipNets sales channels.
12.2?The provisions Sections?12.3?will not apply to any Confidential Information which Purchaser can demonstrate, to the reasonable satisfaction of AstraZeneca;
12.2.1?was already in the public domain (through in each case no fault of Purchaser or any of its affiliates or no breach of this Agreement by Purchaser) prior to its disclosure by AstraZeneca under this Agreement;
12.2.2?comes into the public domain, otherwise than through the fault of the Purchaser or any of its affiliates;
12.2.3?was in the possession of Purchaser prior to the disclosure under this Agreement, otherwise than directly or indirectly through AstraZeneca; or
12.2.4?is purchased or otherwise legally acquired by Purchaser or any of its affiliates at any time from a third person having the right to disclose it.
12.3.1?to maintain the confidentiality of the Confidential Information and not to disclose it directly or indirectly to any third party, save as permitted by Section?12.4;
12.3.2?use the Confidential Information solely and exclusively for the purposes of this Agreement, and
12.3.3?at the request of AstraZeneca or at the latest at the termination for whatever reasons of this Agreement , to return to AstraZeneca all copies of the Confidential Information.
12.4?Notwithstanding Section12.3, Purchaser may disclose Confidential Information to any of its personnel who need to know the Confidential Information in order to fulfil the purpose of this Agreement, provided that Purchaser procures that prior to such disclosure, each such person to whom Confidential Information is to be disclosed is made aware of the obligations contained in this Agreement, and adheres to these terms as if it were a party to this Agreement.
12.5?Each party undertakes not to disclose to any third party information concerning the content or existence of this Agreement, other than to EquipNet. Each party agrees not to mention or otherwise use the name, insignia, symbol, trademark, trade name or logotype of the other party or its affiliates without the prior written consent of the other party.
12.6?Purchaser undertakes at AstraZenecas expense, to remove from the Equipment any remaining name, insignia, symbol, trademark, trade name or logotype of AstraZeneca.
13.1?No liability shall result from delay in performance or non-performance, in whole or in part, by either Party to this Agreement to the extent that such delay or non-performance is caused by an event of Force Majeure.?The Force Majeure Party shall as soon as reasonably practicable (and no later than two days after the occurrence of the Force Majeure event), give written notice to the other Party stating the nature of the Force Majeure event, its anticipated duration and the action being taken to avoid or minimize its effect.?Any suspension of performance shall be of no greater scope and of no longer duration than is reasonably required and the Force Majeure Party shall follow any relevant disaster or contingency plans agreed or in place and otherwise use its best endeavours to remedy its inability to perform; provided, however, if the suspension of or delay to performance to Purchasers performance continues for sixty (60) days after the date of the occurrence of the event of Force Majeure, AstraZeneca shall have the right to terminate this Agreement immediately by written notice to Purchaser, in which case neither Party shall have any liability to the other except for those rights and liabilities that accrued prior to the date of termination.
Purchaser shall comply, in all material respects, with all applicable laws, rules and regulations, that relate to the Agreement, the Equipment or Purchaser, including, but not limited to, those relating to further exportation, environmental matters, public health, wages, hours and conditions of employment, discrimination and occupational health/safety. Purchaser shall ensure that any sub-suppliers comply with this Article?14. In the event of Purchasers non-compliance with this Article?14, in addition to any other applicable rights or remedies, AstraZeneca shall have the right to terminate this Agreement in whole or in part with immediate effect.
15.1?This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement.?Each Party confirms that it is not relying on any representations, warranties or covenants of the other Party except as specifically set out in this Agreement.?Nothing in this Agreement is intended to limit or exclude any liability for fraud.
15.2?The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they shall not be construed as conferring any rights in any other Persons except as otherwise provided in this Agreement. For the avoidance of doubt the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
15.3?Any amendment or modification of this Agreement must be in writing and signed by authorised representatives of both parties.
15.4?This Agreement may not be assigned by either party in whole or in part without the prior written consent of the other party.
15.5?A party's failure to enforce, at any time or for any period of time, any provision of this Agreement, or to exercise any right or remedy shall not constitute a waiver of that provision, right or remedy or prevent such party from enforcing any or all provisions of this Agreement and exercising any rights or remedies.
16.1?This Agreement shall be governed by the laws of England and Wales, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction.
16.2?The Parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the English Courts for any action, suit or proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding related thereto except in such courts.