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?Payment
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?Documentation
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?Liability
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?Without prejudice to
any other provision of this Agreement, AstraZeneca shall not be liable to
provide any refund or allowance against the Price in respect of:
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?Indemnity
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?Purchaser undertakes during the
term of this Agreement and for a period of ten (10)?years thereafter;
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?Force
Majeure
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?Applicable Law and Disputes
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.