Terms and Conditions
1 Interpretation
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1.1 In these Standard Terms and Conditions: "OMICRON" means OMICRON Limited; "Services" means the services to be provided by OMICRON to the Customer; "Customer's Goods" includes goods, samples, equipment, and materials or information of the Customer upon which or in connection with which the Services are carried out; "Report" means the Report to be supplied to the Customer.
1.2 Unless other terms and conditions are expressly accepted by OMICRON by a specific written amendment hereto, the Agreement between the parties will be on the terms and conditions set out below whether or not the same are endorsed upon, delivered with or referred to in any purchase order or other document delivered or sent by the Customer to OMICRON.
2 Quotations
Any quotation or estimate is given by OMICRON on the basis that no agreement will come into existence until the Customer has endorsed and returned it without amendment. Any quotation or estimate is valid for a period of one calendar month only from the date of issue, provided it was not previously withdrawn.
3 Delivery
OMICRON will endeavour to carry out the Services within the time agreed, and if no time is agreed, within a reasonable time. In no circumstances will OMICRON be liable for loss or damage of any kind by any delay in the performance of the Services. OMICRON may make delivery of the Services by instalments.
4 Liability and Indemnity
4.1 Except to the extent that OMICRON can be shown to have been negligent in carrying out the Services or in providing information or advice to the Customer. OMICRON accepts no responsibility for the use made of any information or advice arising therefrom by the Customer or any third party. The aggregate liability of OMICRON, under this contract, shall be limited to the price of the Services, or £500,000, whichever is the lower. In no event shall OMICRON be liable for loss of profits, loss of business or any indirect or consequential loss. Nothing in this Agreement shall exclude or limit OMICRON's liability for death or personal injury caused by the negligence of OMICRON, its employees or agents or for fraudulent misrepresentation.
4.2 OMICRON hereby excludes all conditions, warranties and stipulations statutory, express or implied, which but for such exclusion would or might subsist in favour of the Customer except as expressly provided for in this Agreement or where the Customer is by law deemed to be a consumer.
4.3 Save insofar as OMICRON can be shown to have been negligent under clause 4.1, the Customer shall fully indemnify OMICRON against all financial liability (including professional costs) suffered or incurred by OMICRON as a result of, or in connection with any third party claim brought against OMICRON resulting from death, injury, damage or loss occasioned by the use, operation, methods or other results of the
Services
5 Reports
5.1 The Customer will provide OMICRON with full and accurate details of the purpose and intended use of the Report to be prepared hereunder. A Report will be provided to the Customer on completion of the Services,
5.2 Except for the purposes and intended use in clause 5.1 the Customer shall not without the prior written consent of OMICRON use, exploit, divulge or disclose to third parties the Report of OMICRON results or conclusions therein or any OMICRON proprietary material including, but not limited to, business or other systems, methodologies, testing techniques and applications, programmes, marketing or technical information, intellectual property rights, which may be communicated to or gained by the Customer in connection with or as a result of OMICRON providing the Services.
5.3 The Customer shall not use OMICRON's name in any way to imply endorsement or otherwise by OMICRON of any process or product.
5.4 The Customer shall fully indemnify OMICRON against all financial liability (including professional costs) suffered or incurred by OMICRON arising out of or in connection with any claim alleging infringement or misuse of a third party’s confidential information, copyright material, patent. registered design or design right in the event that OMICRON was required by the customer to use the information, material, process, invention or design concerned, or the information, material, process, invention or design concerned was received by OMICRON from the Customer.
5.6 Any statements (whether written or oral) as to the results of the Services carried out and all/any opinions in any report or letter are made in good faith and on the basis of the samples, materials, equipment and information provided to OMICRON by the Customer. The Customer warrants, in respect of each of the samples, materials, information, and equipment provided to OMICRON by the Customer, that it is correct and in good order and has not to the best of the Customer's knowledge been tampered with, altered, added to or substituted in any way whatsoever.
6 Actual or Contemplated Proceedings
The Customer must disclose to OMICRON in writing if the Services are required in connection with actual or contemplated civil or criminal proceedings. A Report must not be used for the purpose of any actual or contemplated legal or arbitration proceedings without OMICRON's prior written consent.
7 Health and Safety
The Customer will ensure that all appropriate safety measures and legislation are observed when sending any material to OMICRON and will ensure that any hazardous material is clearly marked. Where the Customer knows or suspects that any substance or procedure it is providing, making available or requesting may give rise to a hazard of an unusual nature the Customer will make OMICRON aware in writing of the nature of that hazard before arranging for the delivery (or collection) of the materials to OMICRON or before exposing any OMICRON employee, agent or subcontractor to the materials.
8 Customer's Goods
It is the Customer's responsibility to ensure that the Customer's Goods are tested or inspected and are suitable for use by OMICRON in the performance of the Services. The Customer shall arrange at his expense and risk the delivery of the Customer's Goods to OMICRON.
9 Price
OMICRON reserves the right to amend the price to take account of any variations in the Service as a result of additional information or a request in writing by the Customer. OMICRON will obtain the Customer's prior approval before performance of any additional work or variations in the Service. Unless expressly stated otherwise all prices are exclusive of VAT which shall be charged at the rate and in the manner prescribed by law from time to time.
10 Payment
10.1 The price will become payable upon the performance of the Services and/or delivery of the goods and payment will be made by the Customer in pounds sterling within 28 days of the date of the OMICRON invoice. OMICRON will be entitled to payment for all instalments of services part supplied to the customer whether under a blanket order or otherwise.
10.2 Interest at an annual rate of 8% above the Bank of England Base Rate from time to time will accrue and be calculated on a daily basis on overdue accounts from the date of invoice until payment. Notwithstanding any Agreement Term allowing the Customer credit payment shall become due and payable to OMICRON immediately upon the termination of the Agreement.
10.3 Where the Customer defaults under any Agreement with OMICRON in payment on the due date of any sum due to OMICRON, OMICRON without liability may postpone any delivery or may cancel the Agreement or any other Agreement between the Seller and the Customer but without prejudice to any right or remedy which the Seller may have against the Customer in respect of such default.
11 Intellectual Property
Unless otherwise agreed in writing, the ownership of Reports and any copyright, patents, registered designs, design information, conceptual solutions or analysis or any other right arising from OMICRON providing the Services other than third party rights ("the rights") shall remain vested in OMICRON and the Customer shall be granted a non-exclusive non-transferable licence to use the right solely in accordance with these terms and conditions.
12 Confidentiality
Both parties will take reasonable measures to keep confidential for a period of five calendar years from the acceptance date of the supply any information provided (oral or written) or disclosed by or on behalf of the other. There is no obligation on either party to observe confidentiality on any information which at the time of disclosure is (or subsequently becomes) published or generally available to the public (other than as a breach of the receiving party's obligation under this clause), or any information which at the time of disclosure was already in the possession of the receiving party (other than under an obligation to the disclosing party), or subsequently legally comes into their possession from another source.
13 Cancellation
Cancellation of any order, by the customer, is not permitted after an order acknowledgment has been issued without prior agreement by OMICRON. If the Customer cancels, extends or delays (or purports to cancel) the Agreement or part thereof, or fails to accept supply of the Services at the time agreed or if no time is agreed within a reasonable time, then the Customer will be liable (without prejudice to any other rights of OMICRON) to indemnify against any resulting loss, damage or expense incurred by OMICRON in connection with the supply or non-supply of the Services including the cost of any services, material, plant or tools used or intended to be used therefore and the cost of labour and other overheads including a percentage in respect of profit.
14 Termination
14.1 OMICRON may terminate this Agreement forthwith by notice in writing if the Customer is in breach of this Agreement and shall have failed to remedy the breach within 30 days of the receipt of a request in writing to remedy the breach such request indicating that failure to remedy the breach may result in termination of this Agreement.
14.2 The Agreement will terminate immediately on notice in writing if in respect of one party an order is made or a resolution is passed for its winding up, an order is made for the appointment of an administrator to manage the affairs, business and property of one party or if a receiver is appointed of any of the other party's assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt.
14.3 The termination of this Agreement will be without prejudice to the rights and duties of either party accrued prior to termination. The clauses in this Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination. The Price in respect of any Services (or part thereof) supplied prior to termination shall remain payable regardless of the reason for termination.
15 Force Majeure
If OMICRON is unable (whether temporarily or permanently) to procure any services or goods necessary to enable it to supply the Services or if the supply of the Services is prevented or hindered by reason of any cause beyond OMICRON's reasonable control (which shall include governmental action, war. riot. civil commotion, fire, flood, epidemic, labour disputes. restraints or delays affecting shipping or carriers, currency restrictions and act of God) OMICRON may cancel the Agreement by notice in writing to the Customer so far as it relates to the Services not then supplied or work not then done and such cancellation shall not give rise to any claims by the Customer provided that the Customer shall remain liable to pay for the Services delivered prior to the date of such cancellation.
16 Data Protection
16.1 Where OMICRON acts as a data controller in the processing of personal data in performing the Services. it will comply with the provisions of the Data Protection Act 1998 ("DPA"), up until May 2018. From this date OMICRON will comply with the provisions of the General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679).
16.2 Where OMICRON acts as a data processor, OMICRON will take such security measures as are required to process personal data equivalent in line with either the DPA or GDPR, whichever is applicable at the time.
16.3 To obtain a copy of the personal information held by OMICRON. the person whose details OMICRON holds may write to the Data Protection Officer of OMICRON ("DPO"), and OMICRON will provide the data subject with a copy of the personal information held and details of the source of the data (where this is available), within one month. If it is believed the information is incorrect or incomplete, the data subject should advise the DPO in writing, and has the right to have inaccurate data rectified without undue delay.
16.4 A data subject also has the right to request to be forgotten, and ask that OMICRON delete their personal data, in certain circumstances, i.e. where consent was the basis of collection or where data is no longer necessary for the purposes collected.
16.5 Where consent has been obtained, OMICRON may use the information provided by the Customer to contact appropriate persons within the Customer's organisation about goods and services offered by OMICRON. If at any time the Customer no longer wishes to receive this information it shall contact OMICRON's DPO and the relevant contact details will be suppressed for the purpose of receiving this information.
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17 General
17.1 OMICRON will be entitled to sub-contract any part of the Services to be provided hereunder.
17.2 On completion of the Services or termination of this Agreement OMICRON will. with the agreement of the Customer, either store or destroy all samples, material, information, equipment. Such storage shall be subject to terms and conditions to be agreed including any charges therefor.
17.3 OMICRON reserves the right to announce publicly that it is providing services to the Customer with the prior written agreement of the Customer
17.4 Failure by OMICRON to enforce any of the Agreement terms will not be construed as a waiver of any of its rights hereunder.
17.5 The Customer will have no right of set off, statutory or otherwise.
17.6 The Agreement will be subject to English Law and the parties submit themselves to the exclusive jurisdiction of the English courts.
17.7 OMICRON and ORL are business names of OMICRON Research Limited.