Terms and Conditions

Colonis Terms and Conditions of Business (Sales)

1. Definitions

In these terms and conditions (T&Cs), the following definitions shall apply:

Contract means any contract between You and Us incorporating these T&Cs for the sale of Products;

controlled by means the power to direct or cause the direction of the management or policies of a person whether through the direct or indirect ownership of voting securities, by contract, resolution, regulation or otherwise;

Liability means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;

Order means Your purchase order form, or Your written acceptance of Our Quotation, as the case may be;

Products means any products ordered from Us by You including without limitation pharmaceutical compounds and drugs;

Quotation means any written confirmation provided by Us and accepted by You, confirming the price for the Products and other variable details specific to your Order;

Sanctions Laws means any law, regulation or wider measure applicable to either You or Us relating to the adoption, implementation and enforcement of economic sanctions, export controls and trade embargos;

Sanctioned Person means any individual, entity or body (i) specifically designated under Sanctions Laws, or (ii) owned or controlled by any individual, entity or body specifically designated or listed under Sanctions Laws, or (iii) acting for or on behalf of any individual, entity or body specifically designated or listed under Sanctions Laws; 

We, Us, Our means Colonis Pharma Limited;

You, Your, Yourself” means the person, organisation or other business entity whose order for Products is accepted by Us and to whom We subsequently supply the Products.

2. Basis of Contract and Quotations

2.1 These T&Cs shall govern the agreement between You and Us to the exclusion of any other terms or conditions, including the exclusion of any terms or conditions which You may purport to apply under any purchase order, confirmation order or similar document except that in the event of any conflict between these T&Cs and any signed agreement between You and Us the signed agreement shall take precedence.

2.2 No oral warranties or representations shall bind Us. No variation of these T&Cs shall be binding on Us unless agreed in writing between You and one of Our authorised representatives or contained in the relevant Quotation where provided by Us. Our employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning the Products unless confirmed by Us in writing. You acknowledge that You do not rely on any representation and/or warranty that has not been made in accordance with these T&Cs.

2.3 Quotations will not form part of the Contract unless accepted by both You and Us and within any time period specified on the Quotation (Quotation Offer Period). Quotations may be withdrawn by Us at any time during the Quotation Offer Period by oral or written notice. Notwithstanding this, We have the right to refuse to accept any Orders placed for Products under the Quotation.

3. Orders

3.1 The Contract between You and Us shall come into effect on Our acceptance of Your Order. No Order shall be deemed accepted by Us until confirmed in writing by Our authorised representatives.

3.2 You shall be responsible for the accuracy of an Order and for giving Us any information necessary to perform the Contract.

3.3 If You approve sample Products supplied by Us then You shall have no claim in respect of, nor any right to reject, the Products, provided those Products are of the same description, specification, quality and fitness for purpose as the sample.

4. Delivery and Performance

4.1 We shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location). We will use Our reasonable commercial endeavours to ensure delivery and/or performance on the dates specified in the Order, but dates for delivery and/or performance are estimates only and are not guaranteed. Time is not of the essence in relation to such dates and late delivery or performance shall not entitle You to cancel the Order. They are also subject to any matter beyond Our reasonable control.

4.2 Delivery shall be deemed to occur:

4.2.1 where Products are delivered by Us to You: at the time when the Products arrive at the Delivery Location; or

4.2.2 where Products are collected by You: on collection from the designated collection address and in any event, no later than 3 Working Days after You have been notified that the Products are available for collection in accordance with clause 4.7.

4.3 If Products are to be delivered in instalments, each delivery shall constitute a separate and distinct contract. Failure by Us to deliver, or a claim by You regarding, any instalment under a separate and distinct contract shall not entitle You to repudiate and/or terminate the Contract as a whole or any other separate and distinct contract or Order.

4.4 We shall not be required to fulfil Orders for Products in the sequence in which they are placed.

4.5 You shall procure during normal working hours that We have free rights of access to the Delivery Location. You shall be responsible at Your own cost for all arrangements to unload the Products when delivered to You. Unless otherwise agreed in writing, delivery of Products will be made between 0800 hours and 1700 hours, Monday to Friday, excluding public holidays in the UK and the country of the Delivery Location (Working Days).

4.6 If You fail or refuse to take delivery of any Products We shall be entitled to withhold delivery of those Products and to treat the Contract for that particular Order as repudiated by You. If any delay to take delivery of any Products is caused by You, We may store the Products for at least 7 Working Days in accordance with clause 4.7, and charge You for all related costs and expenses (including insurance).

4.7 If We agree that the Products are to be collected by You then You shall collect the Products from a location specified by Us within 3 Working Days of being notified that the Products are ready for collection. If the Products are not collected by You within this time We may store the Products at Your expense and risk until collection.

4.8 If after 7 Working Days you do not rectify the failure or refusal to take delivery of Products under clause 4.7, or You to do not collect the Products from Us within the time period specified in clause 4.7, We may in Our discretion sell or otherwise dispose of part or all of the Products.

4.9 Where the quantity of Products delivered is not in accordance with the Order, You must notify Us within 3 Working Days of delivery or within 1 day of delivery in relation to cell therapy or gene therapy Products. We will remedy any shortfall in delivery where We consider an error in the order has occurred solely by Us.

5. Damaged, Defective and Non-Defective Products Returns

5.1 Any Products which are alleged to be defective or damaged must be notified to Us within five (5) Working Days of delivery or collection, with a written report of the alleged defect or damage, and where reasonable and if requested by Us be returned to Us within 10 Working Days of the date of delivery or collection in their original boxes and packaging for inspection. We will alert the Product manufacturer as quickly as reasonably possible and:

5.1.1. if the Products are confirmed as being defective then a credit for the price of the defective Products or replacement will only be issued by Us as authorised by the manufacturer concerned, and whichever option is provided is at the discretion of the manufacturer and/or Us; and

5.1.2. if the Products are confirmed as being damaged then either a refund or credit will be offered to You at Our discretion.

5.2 We will not accept Product returns except solely where agreed by Us in accordance with these T&Cs or in relation to a Product recall.

5.3 If, after the time periods referred to in clause 5.1 have passed and You have not raised any allegations of defective or damaged Products, You are deemed to have accepted the Products.

5.4 To arrange the return of any non-defective Products, you must obtain the written authorisation from either Us or Our authorised distribution site within 3 Working Days of delivery to You. The right to make such a return shall be subject to the following:

5.4.1 the Products are returned to Us in the same condition as they were received by You on the date of delivery;

5.4.2 You can demonstrate to our reasonable satisfaction that the Products have been properly stored at all times in the correct conditions; and

5.4.3 the Products are returned to Us within 30 calendar days of delivery to You.

6. Postponement and Cancellation

6.1 We may comply with reasonable requests by You for postponement of delivery and/or performance but shall be under no obligation to do so. Where delivery and/or performance is postponed at Your request and We have agreed to that postponement, then We may require that You pay all Our costs and expenses incurred as a result including, but not limited to, reasonable charges for storage, transportation and insurance. In addition You shall be obliged to pay for the Products in accordance with clause 7 as if delivery and/or performance had not been postponed.

6.2 If You wish to cancel an Order which has been accepted by Us, you must notify us immediately.  Except where cancellation occurs in accordance with clause 8.1, in Our discretion, we may agree to the cancellation of the Order and termination of the relevant Contract.  Our agreement to terminate the Contract for that Order will only be effective upon one of Our authorised representatives agreeing to it in writing.  Notwithstanding our acceptance of a cancellation, We may require in Our discretion that You indemnify Us in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Us as a result of cancellation. 

6.3 If you purport to cancel an Order without our consent and/or refuse to accept delivery of ordered Products You will:

6.3.1 have no further recourse against Us under the Contract; and

6.3.2 indemnify and keep Us indemnified against any and all lost profits, costs (including increased administration costs and legal costs on a full indemnity basis), expenses, damages and any other loss and/or Liability suffered by Us as a result.

7. Price, Payment and Credit Limit

7.1 The price of the Products shall be as specified in the Quotation or where no Quotation is signed by Us and You, as otherwise specified in writing by Our authorised representatives and confirmed in a written order. Except as otherwise stated, prices are exclusive of any transport, packaging and/or insurance costs and are exclusive of any applicable taxes and duties for which You shall additionally be liable.

7.2 Where any taxable supply for Value Added Tax or similar tax purposes is made under the Contract by Us to You, You shall, on receipt of an invoice from Us, pay to Us such additional amounts in respect of such Value Added Tax or similar tax as are chargeable on the supply of the Products at the same time as payment is due for the supply of the Products.

7.3 We may increase Our prices where an increase in costs, expenses and/or materials is suffered by Us (including, without limitation, any factor outside of Our control such as any foreign exchange fluctuation, currency regulation and alteration of duties). You will be informed in advance and in writing by Us of any price increases for the Products as soon as practicable after we become aware of any changes.

7.4 Unless otherwise agreed in writing by Us or specified in the Quotation:

7.4.1  Our terms of payment are 30 days from the date of invoice;

7.4.2  time for payment shall be of the essence;

7.4.3  all invoices issued on a pro-forma basis are due for immediate payment; and

7.4.4  payment of an invoice shall be in full and in cleared funds to a bank account nominated in writing by Us.

7.5 If You fail to make any payment in full on the due date then, without prejudice to any other right or remedy available, We may charge You any reasonable additional administration costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 4% per annum above the base rate from time to time of National Westminster Bank.

7.6 We may invoice each delivery of Products separately. We will render an invoice to You at any time and/or at any stage during performance of the Contract.

7.7 You shall pay all sums due to Us without any set-off, deduction, counterclaim and/or any other withholding. Payment shall not be deemed to be made until We have received either cash or cleared funds in respect of the full amount outstanding.

7.8 If payment in full is not made to Us when due then We may withhold or suspend future or current deliveries of the Products and delivery under any other agreement with You.

7.9 We may set a reasonable credit limit for You. We may refuse to accept orders for Products and/or suspend or withhold delivery of Products if such Products would result in You exceeding or you have exceeded Your credit limit.

8. Specification, Intellectual Property Rights and Confidentiality

8.1 Any Specifications supplied by Us to You shall only be approximate unless stated on the Quotation or otherwise agreed in writing. If there is an error in the specification made by Us in the Quotation or as otherwise agreed in writing by Us, where that error is material and it has been relied upon by You, You may cancel that part of the Contract only which is affected by the error without Liability due to the cancellation in respect of that part cancelled.

8.2 The quantity, quality, description and/or specification for the Products shall be that set out in Your Order. You are responsible for checking the Order and satisfying Yourself that any specification given is accurate and adequate for the Products.

8.3 We shall have no Liability for errors in any specification or details supplied by You. We will use all reasonable endeavours to provide final products to the same specification as proofs or samples, however, no guarantee is expressed or implied that the entire consignment of Products will have the same specification as the sample.

8.4 We warrant that, where Products are supplied by description and not sample, on delivery the Products will comply with their description in the Order in all material respects.

8.5 You shall not make any modification to the Products or their packaging, nor alter, remove, or tamper with any trade marks used on or in relation to the Products. All intellectual property rights (including without limitation all patents, copyright, design rights (whether registered or unregistered), trade marks (whether registered or unregistered) skill and/or know-how and other similar rights, whether existing now and/or in the future, wherever existing in the world together with the right to apply for protection of the same) in the Products and/or their packaging shall be owned by Us or the relevant manufacturer (as appropriate) absolutely.

8.6 You will at Our cost and request, do all acts and/or things and execute all documents and/or deeds to give effect to clause 8.5 above and/or to assist Us in the application, registration, renewal and/or protection of such intellectual property rights.

8.7 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.8.

8.8 Each party may disclose the other party’s confidential information:

8.8.1 to its employees, officers, representatives, contractors or subcontracts 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 8; and

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

8.9 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

9. Property and Risk

9.1 Risk in the Products under an Order shall pass to You at the time of delivery as identified in clause 4.2.

9.2 We shall retain title of the Products under an Order until We have received payment in full in cash or cleared funds of all sums due and/or owing in relation to those Products.

9.3 Until We have received full payment for l Products supplied to You, You shall store the Products separately from any products or goods belonging to You or any third party and the Products must be clearly identified as being Our property. You agree that Our employees and/or agents shall be entitled to enter Your premises to check compliance with this clause, and You agree to provide them with access.  You shall properly store and protect the Products and keep the Products insured for the price at which the Products were sold to You against all insurable risks and shall hold any proceeds of such policy of insurance relating to the Products on trust for Us and account to Us for any proceeds of such policy of insurance relating to the Products upon receipt of the same. Any monies received from You by Us in accordance with this clause shall not discharge Your liability to pay the price for the Products plus interest accrued in accordance with clause 7.5 but shall be set off against such liability.

9.4 In the event that there is no payment due for the Products provided by Us to You, title shall pass to You at the time of delivery as defined in clause 4.2.

10. Termination and Default

10.1 Without affecting any other right or remedy available to it, either party may terminate a Contract by giving the other party not less than 12 months’ written notice.

10.2 If You:-

10.2.1 fail to make payment to Us when due;

10.2.2    breach the terms of the Contract and, if capable of remedy, have not remedied the breach within 10 Working Days of receiving notice requiring it to be remedied;

10.2.3    persistently breach any one or more terms of the Contract;

10.2.4    pledge or charge any Products which remain Our property, or cease or threaten to cease to carry on business, or propose to compound with Your creditors, apply for an interim order under Section 252 Insolvency Act 1986 or have a Bankruptcy Petition presented against You, enter into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of Your assets, or take or suffer any similar action in any jurisdiction;

10.2.5    appear from Your credit rating to be financially unable to meet Your obligations under the contract; and/or

10.2.6    appear reasonably to Us to be about to suffer any of the events described in 10.2.4 and 10.2.5;

then We shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.3.

10.3 If any of the events in clause 10.2 occur in relation to You then:-

10.3.1 We may enter, without prior notice, and You shall give us access to, any of Your premises (or premises of third parties, of which You shall procure that We are given access to) where Products owned by Us may be and repossess and dispose of or sell any Products found which are owned by Us so as to discharge any sums due to Us under this Contract or any other agreement with You;

10.3.2 We may require You not to re-sell or part with the possession of any Products owned by Us until You have paid in full all sums due to Us under the Contract or any other agreement;

10.3.3 We may withhold delivery of any undelivered Products and stop any Products in transit;

10.3.4 We may cancel, terminate and/or suspend without Liability to You any agreement with You; and/or

10.3.5 All monies owed by You to Us shall become due and payable immediately.

10.4 Additionally, if any of the events in clauses 10.2.4 to 10.2.6 occurs in relation to You, We shall have a lien over all property or goods belonging to You in Our possession in respect of all sums due from You to Us, and upon the termination of the Contract if monies due to Us from You have not been paid within 7 Working Days of termination We may sell any property or goods over which We have a lien (and You agree that We may give good title for such property and/or goods) and shall apply the proceeds of sale firstly in discharging any costs or expenses of sale, secondly in repaying any interest or expenses owed by You to Us, thirdly in payment of any principal sums owed to Us and fourthly We shall account to You for the remainder (if any).

11. Limitations On Liability

11.1 We shall have no Liability:

11.1.1 for any loss arising from the use of the Product by an end user unless such Liability can be demonstrated to have arisen as a direct result of our wilful misconduct or recklessness in handling the supply of the Product;

11.1.2  for any defect in the Products caused or contributed to as a result of the Products being used for display or demonstration purposes or being handled by You or Your customers;

11.1.3  for defective Products where (i) the defect has been caused or contributed to by You to the extent so contributed; (ii) You continue to use the Products after giving notice of defect under clause 5; (iii) the defect arises because You failed to follow Our oral or written instructions as to the storage, commissioning, use or maintenance of the Products; (iv) the defect arises as a result of Our following instructions from You to alter or amend the Products; (v) You alter or repair the Products without Our consent; or (vi) the defect arises as a result of wilful damage or negligence by You;

11.1.4 to You for breach of warranty where the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards;

11.1.5 to You if the price for the Products has not been paid in full by the due date for payment;

11.1.6 to You for defective or damaged Products and incorrect quantity of Products delivered unless the event is notified to Us within the appropriate time limit set out in the Contract;

11.1.7 to You for Products not despatched or Products lost in transit unless the event is notified to Us within 3 Working Days of such event occurring;

11.1.8 for damage, loss, liability, claims, costs or expenses caused or contributed to by the continued use of defective Products after a defect has become apparent or suspected or should reasonably have become apparent to You;

11.1.9 to You to the extent that You are covered by any insurance policy and You shall ensure that Your insurers waive any and all rights of subrogation they have against Us;

11.1.10 for any consequential losses, including but not limited to: loss of profits and/or damage to goodwill; economic and/or other similar losses; special damages and indirect losses; and/or business interruption, loss of business, contracts, opportunity and/or production.

11.2 You shall:

11.2.1 give Us an opportunity to remedy any matter for which We are liable before You incur any costs and/or expenses in remedying the matter Yourself;

11.2.2 produce to Us written evidence of any claims you allege that We are liable together with written details of how the loss was caused and the steps taken by You to mitigate the loss;

11.2.3 be under a duty to mitigate any loss, damage, costs or expenses that You may suffer (including by maintaining an adequate stock of Products).

11.3 Our total Liability to You in respect of all claims shall not exceed £250,000.

11.4 Each of the limitations and/or exclusions on liability in the Contract shall be deemed to be applicable for each of:

11.4.1  Liability for breach of contract;

11.4.2  Liability in tort (including negligence);

11.4.3  Liability for breach of statutory duty;

11.4.4  Liability for breach of Common Law, except clause 11.3 above which shall apply once only in respect of all the said types of Liability; and

11.4.5  All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.

11.5 Nothing in the Contract shall exclude or limit Our Liability for death or personal injury due to Our negligence or any Liability which is due to Our fraud or fraudulent misrepresentation or any other liability which it is not permitted to exclude or limit as a matter of law.

11.6 You will indemnify and keep indemnified Us against any and all losses, proceedings, lost profits, damages, awards, expenses, costs (including increased administration costs and legal costs on a full indemnity basis), claims, actions and any other losses and/or liabilities suffered by Us and arising directly or indirectly from or due to:

11.6.1  any loss arising from the use of the Product by an end user unless such Liability can be demonstrated to have arisen as a direct result of Our actions in handling the supply of the Product;

11.6.2  any breach of contract, any tortious act and/or omission and/or any breach of statutory duty by You;

11.6.3 any breach by You of Sanctions Laws; and/or

11.6.4 Our use of specifications, details and/or stipulations supplied by You.

12. Data Privacy

12.1 Where We process your personal data in relation to the purchase of Products under the Contract We will comply with any applicable data protection legislation currently in force, including but not limited to (i) the Data Protection Act 2018, the UK GDPR, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time and (ii) any successor legislation thereto.

13. Anti-Bribery and Corruption

13.1 Both We and You shall not, and shall procure that Our and Your respective directors, employees, agents, representatives, contractors or sub-contractors shall not, engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and anti-corruption laws, regulations and codes in any jurisdiction, including but not limited to the Bribery Act 2010 and, where applicable, the Foreign Corrupt Practices Act 1977.

14. Modern Slavery

14.1 Both parties shall and shall procure that its directors and employees shall at all relevant times (a) comply with the provisions of the Modern Slavery Act 2015; (b) not engage in any activity, practice or conduct that would constitute an offence under the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.

15. Sanctions

15.1 Both We and You acknowledge the existence of Sanctions Laws. We shall ensure that We comply with all applicable Sanctions Laws to which We are subject, including those of any jurisdiction where We are located or incorporated. You shall ensure that You comply with all applicable Sanctions Laws to which You are subject, including those of any jurisdiction where You are located or incorporated.

15.2 Both We and You shall not take any action or refrain from taking any action which would, or would in the reasonable opinion of the party subject to Sanctions Laws, cause such party to breach such Sanctions Laws.

15.3 You shall carry out appropriate due diligence with regards to any third party to whom the Products are re-sold, re-supplied, re-exported, or re-transferred. You shall ensure that You have no knowledge or reasonable cause to suspect that any activities related to the Products will, either directly or indirectly, involve any Sanctioned Person or will otherwise be in breach of Sanctions Laws.

15.4 In the event of Us or You becoming a Sanctioned Person, the other party may terminate any Contracts with immediate effect and without payment of compensation.

16. General

16.1 No waiver by Us of any breach of the Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision. If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.

16.2 Either party shall have no Liability to the other for any delay in performance of the Contract (other than in relation to payment) where such delay is due to events outside the affected party’s reasonable control including without limitation to acts of God, war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If a party is affected by such events then time for performance shall be extended for a period equal to the period that such events delayed performance.

16.3 You shall not assign Your interest in the Contract (or any part) without Our written consent. We may assign, transfer or sub-contract all or any part of our obligations and/or interest in the Contract to any third party without notice.

16.4 All third party rights are excluded and no third party shall have any right to enforce the Contract. Any right of a third party to enforce the Contract may be varied and/or extinguished by agreement between the parties to the Contract without the consent of such third party.

16.5 The Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.

Dated 7 February 2024

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