These Terms set out the terms and conditions on which Shimadzu UK Limited (company registration number 05342169) whose registered office is Mill Court Featherstone Road, Wolverton Mill South, Milton Keynes, England, MK12 5RE (“Shimadzu” or “us”, “we” or “our”) will supply Products to you (the “Customer”). These Terms and the Quotation shall together constitute the contract between us and you (the “Contract”).

1. INTERPRETATION

The following definitions and rules of interpretation in this clause apply in this Contract.

1.1. Definitions:

“Acceptance Certificate” the certificate to be signed by the Customer under clause 10.1.2

“Acceptance Tests” the acceptance tests for a Product as applicable to a particular Product and in the form and method as stipulated by Shimadzu to a Customer.

“ADR notice” has the meaning given in clause 27.1.

“Business Day” a day, other than a Saturday, Sunday or public holiday in England.

“Commencement Date” the date on which Shimadzu accepts an Order in line with clause 4.4.

“Confidential Information” has the meaning given in clause 20.1.

“Customer” or “you” means the person, firm or company identified in the Quotation as the purchaser of Products from us.

“Customer Background IPRs” all Intellectual Property Rights of which the Customer, or a member of the Customer's Group, is the owner or licensee and which are disclosed, licensed or provided to Shimadzu pursuant to this Contract.

“Customer Default” has the meaning given in clause 6.2.

“Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

“Delivery” completion of delivery of Products specified in an Order in accordance with clause 7.3 or clause 7.7.1.

“Delivery Location” the location set out in the Quotation or such other location as Shimadzu and the Customer may agree in writing.

“Dispute” has the meaning given in clause 27.1.

“Dispute Notice” has the meaning given in clause 27.1.

“End-User Licence” the end-user licence agreement for the Software as applicable to any given Product and to the end-users operating that Product.

“Force Majeure Event” has the meaning given in clause 25.1.

“Group” in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.

“Incoterm” the series of pre-defined commercial terms published under the name Incoterm® by the International Chamber of Commerce (Paris) as in force at the Commencement Date. Any term or expression which is defined in or given a particular meaning by the provisions of an applicable Incoterm shall have the same meaning in these Terms, but if there is any conflict between the provisions of the Incoterm and these Terms, the latter shall prevail.

“Installation” installation of the Product at the Site(s).

“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.

“Key Personnel” the persons nominated by the Customer as being responsible for overseeing the Customer’s compliance with its obligations under this Contract and who shall have the authority to act on behalf of the Customer on the matters for which they are expressed to be responsible.

“Mandatory Policies” Shimadzu's business policies and codes as in force (and as amended by Shimadzu) from time to time.

“Order" the Customer’s order for Products, as set out in the Customer's written acceptance of the Quotation.

“Products” the products set out in the Quotation and, where the context requires, the Products ordered by and supplied to the Customer.

“Product Price Adjustment” has the meaning given in clause 14.1.

“Product Price Adjustment Notice” has the meaning given in clause 14.1.

“Product Prices” the prices of the Products as determined in accordance with clause 13.1 and Product Price means the price of an individual Product as determined in accordance with that clause.

“Quotation” means the document identified as a quotation or order form provided by Shimadzu.

“Shimadzu’s Background IPRs” all Intellectual Property Rights of which Shimadzu, or a member of Shimadzu's Group, is the owner or licensee, and which existed before the Commencement Date or were generated in producing the Product, Software or Shimadzu Materials.

“Shimadzu Materials” any materials produced by or on behalf of or licensed to Shimadzu and provided to the Customer during the Term.

“Site” the location(s) at which the Products are to be installed as specified in the Quotation.

“Software” the computer programs installed on the Products.

“Specification” the specification of the Products.

“Terms” means the terms and conditions set out in this document.

“VAT” value added tax or any equivalent tax chargeable in the UK or elsewhere. 

1.2. Clause and paragraph headings shall not affect the interpretation of this Contract. 

1.3. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 

1.4. A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5. A reference to a “holding company” or a “subsidiary” means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.

1.6. A reference to a “month” means a calendar month.

1.7. Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.8. This Contract shall be binding on, and enure to the benefit of, the parties to this Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

1.9. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and as including all subordinate legislation made from time to time under that legislation or legislative provisions.

1.10. A reference to “writing” or “written” includes email but not fax.

1.11. A reference to “this Contract” or to any other agreement or document is a reference to this Contract or such other agreement or document, in each case as varied from time to time.

2. COMMENCEMENT AND TERM

2.1. This Contract shall begin on the Commencement Date and shall continue:

2.1.1. for as long as there are any active Orders; and/or

2.1.2. until terminated in accordance with clause 22 (subject to clause 24).

3. SUPPLY OF PRODUCTS

3.1. Shimadzu shall supply and the Customer shall purchase such quantities of Products as the Customer may order under clause 4 in accordance with the terms and conditions of this Contract.

4. ORDER PROCESS

4.1. These Terms and those of the Quotation apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

4.2. The Quotation shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

4.3. The Order constitutes an offer by the Customer to purchase the Products in accordance with this Contract, which Shimadzu shall be free to accept or decline at its absolute discretion.

4.4. No Order shall be deemed to be accepted by Shimadzu until Shimadzu issues a written acceptance of the Order, at which point the Contract shall come into existence.

4.5. An Order may within 10 Business Days of placing an Order:

4.5.1 be amended by the written agreement of the parties setting out the particular changes to be made and the effect, if any, of such changes on the price and time of delivery; or

4.5.2 be cancelled by either party on giving written notice to the other party.

4.6. If the Customer cancels or requests amendments to an Order, it shall be liable to Shimadzu for all costs incurred by Shimadzu in fulfilling the Order up until the date of the amendment or cancellation and any given for performance of obligations shall be extended accordingly. Shimadzu shall (subject to clause 18.2) have no liability to the Customer if Shimadzu cancels or requests amendments to an Order.

5. QUALITY AND PACKING

5.1 Shimadzu warrants that the Products supplied to the Customer under this Contract shall:

5.1.1 conform to the Specification;

5.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by Shimadzu;

5.1.3 be free from defects in design, material and workmanship and remain so for the shorter of 12 months after acceptance in accordance with clause 10.1 or 14 months after Delivery; and

5.1.4 comply with all applicable statutory and regulatory requirements.

5.2 Shimadzu shall ensure that the Products are properly packed and secured in a manner to enable them to reach their destination in good condition.

6. CUSTOMER OBLIGATIONS

6.1 In addition to its obligations elsewhere in this Contract, the Customer shall:

6.1.1 ensure that the terms of the Order and any applicable Specification are complete and accurate;

6.1.2 co-operate with Shimadzu in all matters relating to this Contract;

6.1.3 provide Shimadzu, its employees, agents, consultants and subcontractors, with access to the Site and any of the Customer’s other premises, as are reasonably required by Shimadzu in order to perform its obligations under this Contract;

6.1.4 promptly provide Shimadzu with such information and materials as Shimadzu may reasonably require to supply, deliver, install and test the Products (including a completed Site preparation guide), and ensure that such information is accurate in all material respects;

6.1.5 make sufficient trained and qualified personnel available to Shimadzu where reasonably required to receive the Products, attend any required training as part of Installation; supervise the Acceptance Tests and otherwise assist Shimadzu in performing its obligations under this Contract;

6.1.6 nominate Key Personnel who are qualified, experienced and fully competent to carry out the tasks assigned to them and keep Shimadzu informed of the Key Personnel’s identities and contact details, immediately informing Shimadzu of any changes (ensuring that there is always at least one member of Key Personnel at any one time); and

6.1.7 obtain and maintain all necessary licences, permissions and consents which may be required in order to perform its obligations under this Contract.

6.2 If Shimadzu’s performance of any of its obligations under this Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):

6.2.1 Shimadzu shall without limiting its other rights or remedies have the right to suspend performance of its obligations until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve Shimadzu from the performance of any of its obligations to the extent the Customer Default prevents or delays Shimadzu’s performance of any of its obligations;

6.2.2 Shimadzu shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Shimadzu’s failure or delay to perform any of its obligations as set out in this clause 6.2; and

6.2.3 the Customer shall reimburse Shimadzu on written demand for any costs or losses sustained or incurred by Shimadzu arising directly or indirectly from the Customer Default.

7. DELIVERY

7.1 Shimadzu shall deliver the Order according to the applicable Incoterms to the Delivery Location at any time after Shimadzu notifies the Customer that the Order is ready for delivery/collection. If no Incoterm is stipulated, delivery shall be Ex Works to the Delivery Location. If no Delivery Location is specified, then delivery shall be Ex Works to Shimadzu's premises.

7.2 In case the respective stipulated Incoterm obliges Shimadzu to perform any import formalities for the import of the Products into the country of delivery, the Customer at its cost is obliged to support Shimadzu in any way reasonably required by Shimadzu. Any delay (other than a delay by Shimadzu) in completion of import formalities shall be an event entitling Shimadzu to an extension of time.

7.3 Delivery is completed on the Order’s arrival at the Delivery Location.

7.4 Shimadzu may deliver an Order by instalments, which may be invoiced and paid for separately. References in this Contract to an Order shall, where applicable, be read as references to instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7.5 Any dates quoted for Delivery are approximate only and the time of delivery is not of the essence. Delays of under 45 Business Days in the delivery of an Order shall not entitle the Customer to:

7.5.1 refuse to take delivery of the Order;

7.5.2 claim damages; or

7.5.3 terminate this Contract.

7.6 Shimadzu shall (subject to clause 18.2) have no liability for any delay in delivering or failure to deliver an Order to the extent that any such delay or failure is caused by a Force Majeure event or the Customer's failure to comply with its obligations under this Contract.

7.7 If the Customer fails to take delivery of an Order, then, except where that failure or delay is caused by Shimadzu's failure to comply with its obligations under this Contract:

7.7.1 delivery of the Order shall be deemed to have been completed at 9.00 am on the day it was delivered;

7.7.2 Shimadzu shall store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance); and

7.7.3 If 30 days after Shimadzu notified the Customer that the Order was ready the Customer has not taken delivery of them, Shimadzu may resell or otherwise dispose of part or all of the Products.

8. INSTALLATION AND ACCEPTANCE TESTING

8.1 The provisions of this clause 8 shall only apply to Products for which Shimadzu is providing Installation and clauses 8.5 - 8.7 shall only apply to those Products for which there are Acceptance Tests which Shimadzu is carrying out.

8.2 Shimadzu shall supply to the Customer, within a reasonable time before any Installation, such information and assistance as may be necessary to enable the Customer to prepare the Site(s) for the Installation.

8.3 The Customer shall, at its own expense, prepare the Site(s) in accordance with the information provided by Shimadzu in advance of each Installation.

8.4 Once the Customer has notified Shimadzu that the Site is ready and following Delivery of the relevant Products, Shimadzu and the Customer shall use reasonable endeavours to agree a date and/or timescales for Installation.

8.5 Shimadzu shall use reasonable endeavours to complete Installation in the timescales agreed in clause 8.4. Time shall not be of the essence in relation to any agreed timetable for Installation and Shimadzu shall (subject to clause 18.2) have no liability for any delay to the extent that any delay is caused by a Force Majeure event, the Customer's failure to comply with its obligations under this Contract or any delays due to visa or work permits being required for Shimadzu’s personnel to travel to the Site(s) and carry out Installation and the Acceptance Tests.

8.6 Shimadzu shall as soon as reasonably possible after Installation carry out the applicable Acceptance Tests. The Customer is permitted to observe all or any part of the testing.

8.7 If the Customer disputes the results of the Acceptance Tests, the Customer shall, within 5 Business Days from the completion of the Acceptance Tests, or any part of these tests, provide a written notice to this effect, giving details of the reasons why they dispute the results. Shimadzu shall repeat the relevant test(s) to address the points raised in the notice within a reasonable time.

8.8 If the Product fails to pass the applicable Acceptance Tests, Shimadzu may choose at its sole discretion:

8.8.1 to fix a new date for carrying out further tests on the Product on the same terms and conditions (which can include later on in the same day);

8.8.2 to alter, repair or replace the Products, before fixing a new date for carrying out further tests on the Product (or replacement) on the same terms and conditions (which can include later on in the same day);

8.8.3 to, with the agreement of the Customer, change the acceptance criteria, amend the Specification and/or reduce the Product Prices as, after taking into account all the relevant circumstances, is reasonable; or

8.8.4 if unable to correct material defects within a period of 3 months from the commencement of Acceptance Tests under clause 8.6, or to replace it, to take back the Product not in conformity with the agreement, in which event the Customer shall be entitled to request a refund in relation to the relevant Product.

8.9 The Customer shall use all reasonable endeavours to assist Shimadzu and make the Site(s) available to Shimadzu for Installation under clause 8.5, for acceptance testing under clause 8.6 and for any further tests, repairs, alterations or collections under clauses 8.8 and 8.10.

8.10 If any Products are damaged as a result of the actions of Shimadzu’s employees’ negligence or mistake during Installation or in carrying out the Acceptance Tests, Shimadzu shall, at Shimadzu’s sole discretion either:

8.10.1 repair or replace the damaged Products; or

8.10.2 refund the price of the damaged Products in full.

9. SOFTWARE

9.1 The provisions of this clause 9 shall only apply to Products which are supplied with Software installed on them and/or where Software is required for the use of those Products.

9.2 Shimadzu grants the Customer a non-exclusive, non-transferable, revocable, conditional licence to use the Software on the Product at the Site(s) for the business purposes of the Customer. Such licence is subject to the following:

9.2.1 the use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer's data using the Product it was installed on by Shimadzu for the normal business purposes of the Customer;

9.2.2 the Customer shall not give access to the Software through any network of computers to users who are not employees or agents of the Customer;

9.2.3 the Customer shall ensure that all of its users of the Software read and agree to the End-User Licence prior to commencing their use of the Software;

9.2.4 the Customer has no right to make, or authorise the making of, any copies of the Software;

9.2.5 the Customer may not make adaptations or variations of the Software; and

9.2.6 the Customer may not disassemble, decompile, reverse translate or in any other manner decode the Software, except as permitted by law.

10. ACCEPTANCE AND DEFECTIVE PRODUCTS

10.1 Acceptance of a Product shall be deemed to have occurred on whichever is the earliest of:

10.1.1 in the case of Products to which there are no applicable Acceptance Tests, if the Customer fails to give a valid notice of rejection in accordance with clause 10.2, the date 5 Business Days after Delivery;

10.1.2 the signing by the Customer of an Acceptance Certificate for the Product;

10.1.3 the expiry of 5 Business Days after the completion of all the Acceptance Tests in relation to that Product, unless the Customer has given a written notice under clause 8.7;

10.1.4 the expiry of 10 Business Days after Installation if the Acceptance Tests for that Product have not started, or are not being progressed as a result of the Customer’s failure to co-operate in the performance of the Acceptance Tests; or

10.1.5 the use of the Product by the Customer in the normal course of the business.

10.2 Subject to clause 10.1, the Customer may reject any Products delivered to it that do not comply with clause 5.1, provided that:

10.2.1 notice of rejection is given to Shimadzu;

10.2.1.1 in the case of a defect that is apparent on normal visual inspection, the later of (i) within 5 Business Days of Delivery; or (ii) (if applicable) if the packaging is unopened at the commencement of Installation by Shimadzu within 5 Business Days of commencement of Installation by Shimadzu;

10.2.1.2 in the case of a latent defect, within 5 Business Days of the latent defect having become apparent and in any event no later than 12 months after Delivery; and

10.2.2 none of the events listed in clause 10.3 apply.

10.3 Shimadzu shall not be liable for a Products' failure to comply with the warranty set out in clause 5.1 in any of the following events:

10.3.1 save for in relation to the warranty in clause 5.1.3 (which applies for a set period) and any warranties included by virtue of clause 5.1.1 which specify a particular warranty period, if the Customer has accepted or been deemed to accept the Product in accordance with clause 10.1;

10.3.2 the Customer makes any further use of those Products after giving notice in accordance with clause 10.2;

10.3.3 the defect arises because the Customer failed to follow Shimadzu's oral or written instructions for the storage, commissioning, installation, use and maintenance of the Products including in relation to spare or consumable parts, or (if there are no such instructions) good trade practice regarding the same;

10.3.4 the defect arises as a result of Shimadzu following any drawing, design or Specification supplied by the Customer;

10.3.5 the Customer alters or repairs those Products without the written consent of Shimadzu or in any unauthorised manner;

10.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

10.3.7 the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

10.4 If the Customer rejects Products under clause 10.2 then Shimadzu shall, at Shimadzu’s sole discretion:

10.4.1 repair or replace the rejected Products; or

10.4.2 repay the price of the rejected Products in full.

10.5 Shimadzu shall have no further liability to the Customer for the rejected Products' failure to comply with clause 5.1.

10.6 The terms of this Contract shall apply to any repaired or replacement Products supplied by Shimadzu.

10.7 If the parties dispute whether any Products comply with clause 5.1, the dispute shall be resolved in accordance with clause 27.

11. TITLE AND RISK

11.1 Risk in Products shall pass to the Customer in accordance with the stipulated Incoterm applicable. If no Incoterm is stipulated, risk in Products shall pass to the Customer on Delivery.

11.2 Title to Products shall not pass to the Customer until Shimadzu receives payment in full (in cash or cleared funds) for the Products and all other sums that are or that become due to Shimadzu from the Customer for sales of Products, in which case title to these Products shall pass at the time of payment of all such sums.

11.3 Until title to Products has passed to the Customer, the Customer shall:

11.3.1 store those Products separately from all other goods held by the Customer and mark them so that they remain readily identifiable as Shimadzu's property;

11.3.2 not remove, deface or obscure any identifying mark or identifying packaging on or relating to those Products;

11.3.3 maintain those Products in satisfactory condition and keep them insured on Shimadzu's behalf for their full price against all risks with an insurer that is reasonably acceptable to Shimadzu. The Customer shall obtain an endorsement of Shimadzu's interest in the Products on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow Shimadzu to inspect those Products and the insurance policy; and

11.3.4 give Shimadzu such information as Shimadzu may reasonably require from time to time relating to the Products and the ongoing financial position of the Customer.

11.4 Subject to clause 11.5, the Customer may use the Products in the ordinary course of its business (but not otherwise) before Shimadzu receives payment for the Products. The Customer may not however resell the Products before that time.

11.5 At any time before title to the Products passes to the Customer, Shimadzu may require the Customer to deliver up all the Products in its possession and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored in order to recover them.

12. PRODUCT RECALL

12.1 If either party is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Products from the market (a “Recall Notice”) it shall immediately notify the other in writing enclosing a copy of the Recall Notice.

12.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of Shimadzu and only then in strict compliance with Shimadzu's instructions about the process of implementing the withdrawal.

13. PRODUCT PRICES

13.1 The Product Prices shall be as set out in the Quotation.

13.2 The Product Prices are exclusive of amounts in respect of VAT and any other duties, taxes, assessments or charges of any kind, except to the extent any taxes or other charges are assessed on the profits of Shimadzu or which under the applicable Incoterm are payable by Shimadzu. The Customer shall, pay to Shimadzu any additional amounts in respect of VAT and any other duties, taxes, assessments or charges of any kind, promptly on receipt of a valid invoice detailed this from Shimadzu. Where the Customer is obliged by any applicable law to make a deduction from any payment due to Shimadzu in relation to any such duties, taxes, assessments or charges, the Customer shall increase the payment to be made such that the net payment received by Shimadzu is without any such deduction.

13.3 The Product Prices are exclusive of the costs of packaging, insurance, carriage, Installation and the costs of conducting the Acceptance Tests, all of which shall be paid for by the Customer. Shimadzu may quote and invoice for these costs as they relate to an Order separately or alongside the Product Prices.

14. PRICE CHANGES

14.1 Following acceptance of an Order, should the costs of manufacturing, production or distribution of the Products increase by over 3% (including as a result of foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs), Shimadzu shall have the right to adjust the Product Prices in respect of that Order to reflect that increase (“Product Price Adjustment”). In order for a Product Price Adjustment to take effect, Shimadzu shall give the Customer notice in writing of the proposed changes (“Product Price Adjustment Notice”). If the Customer objects to a proposed adjustment it must notify Shimadzu of this within 5 Business Days of receiving the Product Price Adjustment Notice, following which the dispute shall be resolved in accordance with clause 27.

14.2 Pending determination of a Product Price Adjustment under clause 14.1, the Product Prices then in force shall continue to apply. Once determined, the adjusted Product Prices shall be deemed to apply with effect from the date set out in the original Product Price Adjustment Notice. Within one month of determining the Product Price Adjustment, the Customer shall pay Shimadzu any outstanding sums due for its purchases of Products since the relevant date, together with any applicable VAT.

14.3 Shimadzu shall provide such evidence as the Customer may reasonably request in order to verify:

14.3.1 invoices submitted by Shimadzu; and

14.3.2 increases in the costs of manufacturing, production or distribution of the Products.

15. TERMS OF PAYMENT

15.1 Shimadzu shall be entitled to invoice the Customer for each Order on or at any time after Delivery and may do so across one or multiple invoices.

15.2 The Customer shall pay invoices in full and in cleared funds within 30 days of the date of the invoice to the bank account nominated in writing by Shimadzu.

15.3 If the Customer fails to make a payment due to Shimadzu under this Contract by the due date, then, without limiting Shimadzu's remedies under clause 22.1, Shimadzu reserves the right to charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.

15.4 If the Customer disputes any invoice or other statement of monies due, the Customer must notify Shimadzu of this within 5 Business Days of receiving the invoice, following which the dispute shall be resolved in accordance with clause 27. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause 15.2.

15.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Shimadzu may set off any amount owing to Shimadzu by the Customer against any amount payable by Shimadzu to the Customer.

15.6 All payments payable to Shimadzu or the Customer under this Contract shall become due immediately on its termination. This clause 15.6 is without prejudice to any right to claim for interest under the law or under this Contract.

16. COMPLIANCE WITH LAWS AND POLICIES

16.1 In performing its obligations under the Contract, the Customer shall and shall procure that each member of its Group comply with:

16.1.1 all applicable laws, statutes, regulations and codes from time to time in force; and

16.1.2 the Mandatory Policies.

16.2 Shimadzu may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer commits a breach of clause 16.1.

17. INTELLECTUAL PROPERTY

17.1 The Customer acknowledges that Shimadzu’s Background IPRs are and remain the exclusive property of Shimadzu or, where applicable, the third party licensor from whom Shimadzu derives the right to use them.

17.2 Shimadzu acknowledges that the Customer Background IPRs are and remain the exclusive property of the Customer or, where applicable, the third party licensor from whom the Customer derives the right to use them.

17.3 To the extent that any Products (and not Software as this is dealt with at clause 9) and/or Confidential Information contain Shimadzu’s Background IPRs, Shimadzu grants to the Customer a non-exclusive, non-transferable and royalty free license to use such Intellectual Property Rights for the sole purpose of operating and maintaining the Products provided under the Contract and strictly for the application and use as set out in the Contract, subject at all times to the terms of this Contract.

17.4 To the extent that the Products use any Customer Background IPRs (including information, detail, drawing, design or Specification supplied by the Customer):

17.4.1 the Customer grants to Shimadzu a non-exclusive, non-transferable, royalty-free licence (including the right to grant sub-licences to permitted subcontractors) to use, solely for the purpose of performing its obligations under this Contract, the Customer Background IPRs; and

17.4.2 the Customer shall indemnify Shimadzu against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other professional costs and expenses) suffered or incurred by Shimadzu arising out of or in connection with any claim made against Shimadzu for actual or alleged infringement of a third party's Intellectual Property Rights.

18. LIMITATION OF LIABILITY

18.1 References to liability in this clause 18 include every kind of liability arising under or in connection with this Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

18.2 Nothing in this Contract limits any liability which cannot legally be limited, including liability for:

18.2.1 death or personal injury caused by negligence;

18.2.2 fraud or fraudulent misrepresentation; and

18.2.3 any other liability which cannot be excluded by law.

18.3 Without prejudice to clause 18.2, Shimadzu will not under any circumstances be liable for any:

18.3.1 loss of profits;

18.3.2 loss of sales or business;

18.3.3 loss of agreements or contracts;

18.3.4 loss of anticipated savings;

18.3.5 loss of use or corruption of software, data or information;

18.3.6 loss of or damage to goodwill; and/or

18.3.7 indirect or consequential loss.

18.4 Subject to clauses 18.2 and 18.3, Shimadzu's total aggregate liability to the Customer under this Contract shall not exceed a value equivalent to 125% of the value of the Order.

18.5 Shimadzu has given commitments as to compliance of the Products with relevant specifications in clause 5.1. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Contract.

19. ASSIGNMENT AND OTHER DEALINGS

19.1 Shimadzu may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party.

19.2 The Customer shall not, without the prior written consent of Shimadzu assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract.

20. CONFIDENTIALITY

20.1 A reference to Confidential Information in this Contract is to any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its Group, including information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”).

20.2 Each party undertakes that it shall not at any time during this Contract and for a period of 5 years after termination disclose to any person any Confidential Information of the other party, except as permitted by clause 20.3.

20.3 Each party may disclose the other party's Confidential Information:

20.3.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 20; and

20.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

20.4 Before a party discloses any Confidential Information pursuant to clause 20.3.2 it shall, to the extent permitted by law, use all reasonable endeavours to give the other party as much notice of this disclosure as possible. Where notice of such disclosure is not prohibited and is given in accordance with this clause 20.4, that party shall take into account the reasonable requests of the other party in relation to the content of this disclosure including in relation to a request for information by third parties under any statutory provision (whether the Freedom of Information Act 2000 (FOIA), the Environmental Information Regulations 2004, the Audit Commission Act 1998 or otherwise).

20.5 If a party is unable to inform the other party before Confidential Information is disclosed pursuant to Clause 20.3.2 it shall, to the extent permitted by law, inform the other party of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made.

20.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this Contract are granted to the other party or are to be implied from this Contract. In particular, no licence is granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.

21. DATA PROCESSING

21.1 For the purposes of this clause 21, the terms “controller”, “processor”, “data subject”, “personal data”, “personal data breach” and “processing” shall have the meaning given to them in the UK GDPR.

21.2 This clause 21 sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that it may disclose to the other party personal data in the course of fulfilling its obligations under this Contract.

21.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Contract with immediate effect.

21.4 Each party shall:

21.4.1 ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the personal data to the other party for the purposes of this Contract;

21.4.2 give full information to any data subject whose personal data may be processed under this Contract of the nature of such processing;

21.4.3 process the personal data shared with it by the other party for the purposes of fulfilling its obligations under this Contract only;

21.4.4 not disclose or allow access to the personal data shared with it by the other party to anyone other than its employees, and any third parties engaged to perform obligations in connection with this Contract both of whom shall be subject to written contractual obligations concerning the shared personal data (including obligations of confidentiality) which are no less onerous than those imposed by this Contract;

21.4.5 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

21.4.6 not transfer any personal data received from the other party outside the UK unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.

21.5 Each party shall also assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular in relation to any personal data shared with it by the other party, each party shall:

21.5.1 promptly inform the other party of any request from a data subject or if it becomes aware of any breach of the Data Protection Legislation.

21.5.2 assist, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to, security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators.

21.5.3 at the written direction of the other party, delete or return such personal data and copies thereof to the other party on termination of this Contract unless required by law to store the personal data;

21.6 The Customer shall indemnify Shimadzu against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Shimadzu arising out of or in connection with the breach of the Data Protection Legislation by the Customer, its employees or agents, provided that Shimadzu gives to the Customer prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.

22. TERMINATION AND SUSPENSION

22.1 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

22.1.1 the other party commits a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

22.1.2 an order is made or a resolution is passed for the dissolution or winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its trustees, officers, directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt;

22.1.3 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 22.1.2; or

22.1.4 the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business.

22.2 Without limiting its other rights or remedies, Shimadzu may suspend provision of the Products under the Contract or any other contract between the Customer and Shimadzu if:

22.2.1 the Customer becomes subject to any of the events listed in clause 22.1.2; or

22.2.2 Shimadzu reasonably believes that the Customer is about to become subject to any of them; or

22.2.3 if the Customer fails to pay any amount due under this Contract on the due date for payment.

23. OBLIGATIONS ON TERMINATION

23.1 On termination of this Contract for any reason:

23.1.1 the Customer shall immediately pay to Shimadzu all outstanding unpaid invoices and interest in line with clause 15.6

23.1.2 the Customer shall upon request from Shimadzu return all of Shimadzu’s equipment, Shimadzu Materials and property, which have not been fully paid for. If the Customer fails to do so within 10 Business Days, then Shimadzu may enter the Customer’s premises and take possession of them. Until the equipment, Shimadzu Materials and property have been returned to Shimadzu, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and

23.1.3 the Customer shall on request, certify in writing to Shimadzu that it has complied with the requirements of this clause 23.

24. SURVIVAL

24.1 On termination of this Contract clauses which expressly or by implication have effect after termination shall continue in full force and effect including:

24.1.1 Clause 17 (Intellectual Property);

24.1.2 Clause 18 (Limitation of liability);

24.1.3 Clause 20 (Confidentiality);

24.1.4 Clause 23 (Obligations on termination);

24.1.5 Clause 27 (Multi-tiered dispute resolution procedure);

24.1.6 Clause 35 (Governing law); and

24.1.7 Clause 36 (Jurisdiction).

24.2 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Contract that existed at or before the date of termination.

25. FORCE MAJEURE

25.1 For the purposes of this Contract, “Force Majeure Event” means any circumstance not in a party's reasonable control including: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination, or sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; and interruption or failure of utility service.

25.2 Shimadzu shall not be liable to the Customer as a result of any delay or failure to perform Shimadzu’s obligations under this Contract as a result of a Force Majeure Event. A Force Majeure Event shall not release the Customer from its obligation to pay for the Products ordered.

26. SEVERANCE

26.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

27. DISPUTE RESOLUTION PROCEDURE

27.1 If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (a “Dispute”) then except as expressly provided in this Contract, the parties shall follow the procedure set out in this clause 27:

27.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, Shimadzu and the Customer shall attempt in good faith to resolve the Dispute;

27.1.2 if Shimadzu and the Customer are for any reason unable to resolve the Dispute within 30 days, the parties agree to either enter into mediation in good faith to settle the Dispute or to appoint an expert to determine the dispute. To initiate the mediation or expert determination, a party must serve notice in writing (an “ADR notice”) to the other party of the Dispute, referring the dispute to either mediation or expert determination. Unless otherwise agreed between the parties, the mediation or expert determination (as applicable) will start not later than 30 days after the date of the ADR notice.

27.2 If the Dispute is not resolved within 30 days after service of the ADR notice, either party may commence court proceedings in relation to the whole or part of the Dispute in accordance with clause 36. Court proceedings may not be issued by either party until such time that either party may commence court proceedings in relation to the whole or part of the Dispute in accordance with clause 36.

28. FURTHER ASSURANCE

28.1 At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this Contract.

29. VARIATION

29.1 No variation of this Contract shall be effective unless it is in writing and signed by Shimadzu (or our authorised representatives).

30. WAIVER

30.1 A waiver of any right or remedy under this Contract or by law shall only be effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

30.2 A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

31. NOTICES

31.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

31.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company), its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing; or

31.1.2 sent by email to the address specified in the Order (for the Customer) or to accountsadmin@shimadzu.co.uk (for Shimadzu).

31.2 Any notice shall be deemed to have been received:

31.2.1 if delivered by hand, at the time the notice is left at the proper address;

31.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

31.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 31.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

32. CONFLICT

32.1 If there is an inconsistency between any of the provisions of the Terms and the provisions of the Quotation, the provisions of the Quotation shall prevail.

33. ENTIRE AGREEMENT

33.1 This Contract constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

33.2 Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.

34. THIRD PARTY RIGHTS

34.1 This Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.

35. GOVERNING LAW

35.1 This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

36. JURISDICTION

36.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.