To ensure that both Biocair and its customers are aware of its trading conditions.
CONTENT OF POLICY
1. DEFINITIONS AND APPLICATION
|In these Terms and Conditions, and elsewhere in the Contract:|
|Agreed Limit of Liability||has the meaning given it in Clause 9.4.2;|
|Applicable Laws||means all laws, regulations and other mandatory requirements from time to time in force anywhere that apply to anything done under or in connection with the Contract;|
|Biocair||means Biocair Inc., a corporation registered in the State of Delaware, USA|
|Biocair Quotation||means any quotation, estimate or other communication from Biocair made in writing, offering to provide Services to Customer and specifying and/or describing those Services;|
|Confidential Information||has the meaning given it in Clause 8.1;|
|Consignee||means the Owner, Customer or other person to whom a Consignment is to be delivered;|
|Consignment||means a consignment of Goods in relation to which any Services are or are to be provided by Biocair under the Contract;|
|Contract||means any contract between Biocair and Customer for the supply of the Services (any reference to the Contract automatically incorporates a reference to these Terms and Conditions);|
|Customer||means the entity that has entered into the Contract with Biocair, under which Biocair is to supply Services;|
|Customer Order||means any request or order from Customer to Biocair, whether or not in writing, for the supply of Services by Biocair;|
|Goods||means the goods, materials or other items, including any packaging for them not provided by or on behalf Biocair, in relation to which any Services are to be provided by Biocair under the Contract;|
|Owner||means the owner of Goods;|
|Party||means Biocair or Customer; and Parties refers to both of them;|
|Services||means services in connection with the supply of packaging for, packing, import and export, collection, delivery and transportation of Consignments, which are to be supplied by Biocair under the Contract;|
|Terms and Conditions||means these terms and conditions of supply;|
|VAT||means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;|
|Writing||and cognate expressions include a reference to e-mail unless expressly provided to the contrary.|
2.1 Services. By requesting Biocair to supply the Services, the Customer agrees to these Terms and Conditions which shall constitute a binding contract. The Customer also agrees to these Terms and Conditions on behalf of any third party, including the Owner, Shipper, Consignee and any insurance company, having or claiming to have an interest in any Consignment. If there is a conflict between these Terms and Conditions and those stated in any bill of lading, air waybill, airbill, receipt or other document related to your shipment, these Terms and Conditions will control and supersede such conflicting terms.
2.2 If any legislation is compulsorily applicable to any Services, these Terms and Conditions shall, as regards such Services, be read as subject to such legislation, and nothing in these Terms and Conditions shall be construed as the Biocair’s surrender of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation. If any part of these Terms and Conditions contravenes such legislation , such conflicting portion shall be deemed null and void and the remainder of these Terms and Conditions shall remain in full force and effect.
3. SERVICES ETC
3.1 Scope of Services. The scope of the Services to be supplied by Biocair under the Contract shall be those specified or described in Biocair Quotations accepted by Customer as below or Customer Orders accepted by Biocair as below, and any other Services that the Parties may from time to time agree in writing.
3.2 Biocair Quotations.
3.2.1 Biocair may from time to time issue Biocair Quotations to Customer. All Biocair Quotations shall be deemed to be issued subject to these Terms and Conditions.
3.2.2 Customer may accept or reject any Biocair Quotation. Customer must communicate acceptance to Biocair, and Biocair may require Customer to confirm such acceptance in writing.
3.2.3 If Customer accepts a Biocair Quotation then Biocair shall supply the applicable Services to Customer subject to the terms of the Contract, and Customer shall also be bound to comply with its obligations under the Contract in relation to such Services.
3.2.4 However Biocair may at any time before Customer has accepted it withdraw a Biocair Quotation, and Customer may not accept a Biocair Quotation after it has been withdrawn or after expiry of any period that the Biocair Quotation remains open for acceptance by Customer as stated in the applicable Biocair Quotation.
3.3 Customer Orders.
3.3.1 Customer may from time to time issue Customer Orders to Biocair. All Customer Orders shall be deemed to be issued subject to these Terms and Conditions.
3.3.2 Biocair may accept any Customer Order either by communicating acceptance to Customer or by commencing supply of the applicable Services. If Biocair does not wish to accept a Customer Order, it will communicate this to Customer.
3.3.3 If Biocair accepts a Customer Order then Biocair shall supply the applicable Services to Customer subject to the terms of the Contract, and Customer shall also be bound to comply with its obligations under the Contract in relation to such Services.
4. OBLIGATIONS OF BIOCAIR
4.1 Performance. Biocair:
4.1.1 shall perform the Services with reasonable care and skill;
4.1.2 shall assign to the Services personnel with the appropriate levels of expertise and experience;
4.1.3 shall devote such time, attention, skill and ability to the Services as may reasonably be required to perform in accordance with the Contract;
4.1.4 may determine the manner in which it performs the Services, including the means, route and procedure to be followed; and
4.1.5 shall use reasonable efforts to arrange the collection and delivery of Consignments in accordance with requested or agreed collection or delivery dates, but does not guarantee to adhere to such dates.
4.2 Subcontracting. Biocair may in its absolute discretion subcontract performance of Services under the Contract to any of its parent, subsidiary or associated companies, third-party independent contractors or other subcontractors. Biocair may also broker the transportation of any Shipment to an independent motor carrier duly registered with the Federal Motor Carrier Safety Administration to transport property in interstate or foreign commerce pursuant to 49 U.S.C. §13902. Any such company shall be entitled to the benefit of these Conditions.
5. OBLIGATIONS OF CUSTOMER
5.1 Cooperation. Customer shall:
5.1.1 promptly provide to Biocair such information, advice and assistance as Biocair requires in connection with the Services, including information that Biocair may require about any Goods, and at Biocair's request communicating with third parties such as customs officials; and
5.1.2 promptly provide to Biocair and its representatives all such other cooperation as may reasonably be required in relation to the Services.
5.2 Consequences of failure to cooperate. If and to the extent that failure by Customer to comply with its obligations under the Contract results in Biocair being unable to perform its obligations, Biocair shall not be liable for that failure. If and to the extent that such failure by Customer results in Biocair incurring extra costs or expending extra time or effort in connection with performance of Services, Customer shall pay to Biocair additional amounts calculated in accordance with Biocair's normal practices at the applicable time.
5.3 Information about and packaging of Goods. Customer warrants that:
5.3.1 any description of and information provided by Customer concerning any Goods that are or are to be the subject of any Services will be complete and accurate so far as relevant to performance of the applicable Services, and in particular concerning potential hazards and any requirements regarding temperature control and monitoring;
5.3.2 it shall provide to Biocair advance written notice if any Goods that are to be the subject of the Services are hazardous, dangerous, perishable or toxic, and shall include detailed advice in writing on how to handle them safely and appropriately;
5.3.3 where Goods that are or are to be the subject of any Services have been prepared, packed, stowed, labelled and/or marked by any person other than Biocair or its subcontractor prior to collection of the applicable Consignment, these things shall have been carried out in a manner appropriate to the Goods taking into account the applicable Services to be provided in relation to them, and in particular shall have been carried out in accordance with Applicable Laws and taking due account of matters of health and safety; and
5.3.4 where Biocair or its subcontractor receives any Goods that are or are to be the subject of any Services, already stowed in a container or any other device specifically constructed for the carriage of those Goods (Transport Unit), the Transport Unit shall be in good condition and suitable for the carriage of the applicable Goods to their destination.
5.4 Warranties by Customer. Customer represents and warrants that it is the Owner of the Goods or, if it is not the Owner of the Goods it is the duly authorised agent of the Owner with authority to engage Biocair to supply the applicable Services in relation to the Goods, on the terms of the Contract.
5.5 Reusable packaging supplied by Biocair. Where Biocair supplies reusable packaging for the shipment of Goods, the risk of loss of and damage to that packaging (fair wear and tear excepted) when not in the possession of Biocair or its subcontractors shall lie with Customer, and Customer shall upon demand indemnify Biocair accordingly.
6. FAILURE TO TAKE DELIVERY
6.1 Agreement of remedial actions. If delivery of a Consignment or any part thereof is not taken by the Consignee at the agreed time and place, Biocair will contact Customer and seek to agree what should be done with the Consignment. Biocair’s liability immediately shall become that of a warehouseman and Biocair's charges in respect of further attempts to have the Consignment delivered to the Consignee (or an alternative Consignee), storage of the applicable Goods, and disposing of the applicable Goods (as relevant) shall be for the account of Customer.
6.2 Other steps. Should Biocair and Customer fail to agree what should be done with the Consignment as above, or should Biocair be unable to take the steps agreed with Customer as above, then, subject to it being legal and safe to do so, Biocair shall be entitled at the expense of Customer:
6.2.1 on 28 days' notice in writing to Customer to dispose of any Goods which have been held by or on behalf of Biocair for 90 days and which cannot be delivered as agreed or instructed; and
6.2.2 without prior notice to dispose of Goods which Biocair believes have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss, hazard or damage to third parties or to contravene any Applicable Laws.
7.1 Amounts payable. The amounts to be paid by Customer to Biocair in respect of the Services supplied under the Contract shall be the amounts specified in the applicable Biocair Quotation or Customer Order or, if not so specified, shall be as calculated by Biocair in accordance with its normal practices at the applicable time. Such amounts may include fees and expenses/disbursements. Biocair shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders. Biocair shall also be entitled to charge Customer any other amounts payable by Customer under the terms of the Contract.
7.2 Payment. Customer shall pay all amounts payable by it within 30 days of the date of Biocair's invoice. If Biocair agrees to collect from a Consignee or other third party, instead of from Customer, any amounts that would otherwise be payable by Customer under the Contract, Customer shall nevertheless remain liable for payment of these amounts and, in the case that Biocair informs Customer that any such amount has not been paid by the applicable third party when due, Customer shall pay the applicable amount to Biocair within 7 days.
7.3 Manner and currency of payment. Customer shall pay all monies becoming due to Biocair under the Contract by electronic transfer to a bank account nominated by Biocair or by such other means as Biocair may reasonably require, shall pay them in Pounds Sterling or such other currency in which they are invoiced, and shall pay them in full without any withholding or deduction because of any set-off, counterclaim, abatement or otherwise.
7.4 Overdue amounts. In addition to any other right or remedy that Biocair may have, if any amount due to Biocair is not paid on time:
7.4.1 If required by Biocair, Customer shall pay interest on the overdue amount calculated at 5% above the Base Rate for the time being of HSBC Bank PLC in the UK, calculated annually but accruing on a daily basis. The interest period shall run from the due date for payment until receipt of the full amount by Biocair, whether before or after any judgement;
7.4.2 Biocair may without liability suspend provision of the Services and withhold any Goods in its possession or under its control until receipt of the full amount by Biocair, together with any interest charged as above; and
7.4.3 Customer shall upon demand by Biocair reimburse Biocair all costs and expenses (including legal fees on a full indemnity basis) incurred by Biocair in recovering overdue amounts from Customer.
8.1 Confidentiality of Confidential Information. Each Party agrees to maintain secret and confidential all information obtained from the other Party, whether pursuant to the Contract or prior to and in contemplation of it, and all other information that it may acquire from the other in the course of the Contract, to respect the other's proprietary rights in such information, to use it exclusivity for the purposes of or as contemplated by the Contract, and to disclose it only to such persons to whom and to the extent that such disclosure is reasonably necessary for such purposes. In the Contract, and subject to Clause 8.2, the information referred to in the immediately preceding sentence is called Confidential Information. Without limiting the scope of Confidential Information, it shall include: (a), subject to Clause 8.2, and as Confidential Information of Biocair, all know-how and other information concerning Biocair's operating procedures, data, contacts, customers, employees, suppliers, contractors and otherwise Biocair's business at any time disclosed to Customer by Biocair; and (b), as Confidential Information of both Parties, the terms of the Contract.
8.2 Certain information not Confidential Information. Confidential Information excludes information which:
8.2.1 prior to receipt thereof from one Party was in the possession of the other and at its free disposal; or
8.2.2 is subsequently disclosed to the recipient Party free of any obligations of confidentiality by a third party who has not derived it directly or indirectly from the other; or
8.2.3 is or becomes generally available to the public through no act or default of the recipient Party or its employees, subcontractors or agents.
8.3 Mandatory disclosures. If and as soon as a Party becomes aware that it may be obliged by any Applicable Laws or competent authority to disclose any Confidential Information of the other Party, then it shall (if it lawfully can) so notify the other and shall at the request and cost of the other provide to the other such assistance as the other may reasonably require in taking lawful steps to limit or prevent the disclosure.
8.4 Obligation to pass on obligations of confidentiality. Each Party shall:
8.4.1 procure that all persons to whom it discloses any Confidential Information of the other shall be made aware of and subject to obligations of confidentiality and non-use reflecting this Clause 8; and
8.4.2 use its best efforts to enforce such obligations.
A breach by any of such persons of any of such obligations shall be deemed to be a breach of the Contract by such Party.
8.5 Period of application. This Clause 8 shall continue in force throughout the provision of the Services and for a period of 5 years after the end of the provision of the Services.
9. LIABILITY AND INSURANCE
9.1 Certain liability accepted. Nothing in the Contract shall be taken to exclude or restrict the liability of a Party (or any other person) for:
9.1.1 negligence resulting in death or personal injury;
9.1.2 fraudulent misrepresentation or other fraud;
9.1.3 wilful default;
9.1.4 infringement of the copyright, database right, trade marks or other intellectual property rights of the other Party or the licensors of the other Party;
9.1.5 payment of any amount payable in accordance with the Contract;
9.1.6 indemnification obligations under Clause 9.6; or
9.1.7 any matter for which it would be unlawful to exclude or restrict liability.
All provisions of the Contract that have as their object or effect the exclusion or limitation of liability shall be read subject to this Clause 9.1.
Biocair shall be liable only under federal law, 49 U.S.C. §14706 or federal common law where applicable, for any loss, damage or delay to any shipment, except as hereinafter provided and limited.
9.2 Reliance on advice. The provision by Biocair to Customer of any advice or information in connection with the Services shall be deemed for all purposes to be part of the Services, and any such advice and information is provided only for the benefit of Customer. Customer must not use or disclose any such advice or information except as may reasonably be required in connection with the applicable Services, and in particular must not provide it to any other person who may seek to rely upon it. Only Customer may rely upon such advice and information, and Biocair shall not be liable for the consequences of any reliance placed upon it by any other person.
9.3 Liability in respect of Consignments. Subject to Clause 9.1 and Clause 9.7.1, Biocair's liability:
9.3.1 for loss of or damage to any Consignment shall not exceed the lesser of: (a) the value of the Goods lost or damaged; or (b) a sum at the rate of two Special Drawing Rights (SDRs) as defined by the International Monetary Fund per kilo of gross weight of the Goods lost or damaged;
9.3.2 for loss or damage as a result of failure to deliver or arrange delivery of a Consignment in a reasonable time or to adhere to agreed departure or arrival dates shall not in any circumstances whatever exceed a sum equal to twice the amount of Biocair’s charges in respect of the Consignment in question; and
9.3.3 in respect of all other claims relating to any Consignment shall not exceed the lesser of: (a) the value of the applicable Goods; or (b) the lesser of (i) a sum at the rate of two SDRs per kilo of gross weight of the applicable Goods or (ii) 75,000 SDRs in respect of any one Consignment.
For the purposes of this Clause 9.3 the value of any Goods shall be their value when they were or should have been shipped. The value of SDRs shall be calculated as at the date when the applicable claim is received by Biocair in writing.
If Customer desires to declare a higher value for its Goods, up to a maximum of $25,000, Owner, Shipper or Customer must request such higher valuation in writing prior to shipment and agree to pay an additional valuation charge for such added value declaration.
Contact Company at +1 (617) 623-0544 for declared value/added valuation charges. The declared value or added valuation for a shipment is not insurance, and Company does not provide or sell cargo liability insurance.
9.4 Limitations of liability. Subject to Clause 9.1:
9.4.1 neither party shall in any circumstances be liable for any special, incidental, indirect or consequential damages of any kind, including but not limited to loss of income, lost profits or market, lost opportunity, loss of business, production line “down time,” antique or sentimental value, punitive damages under any state or common law principles, attorney’s fees, regardless of whether such party had knowledge that such damage(s) might be incurred.; and
9.4.2 each Party's entire liability in respect of all causes of action arising out of or in connection with the Contract shall be limited to: (a) the amount specifically agreed by the Parties under the Contract (Agreed Limit of Liability); or (b), if there is no Agreed Limit of Liability, $500,000.
9.5 Scope of limitations of liability. Any provision of the Contract that has as its object or effect the exclusion or limitation of liability shall, unless expressly stated to the contrary in that provision, operate to exclude or limit liability on whatever basis incurred, whether for breach of contract, in tort (including negligence) or otherwise.
9.6 Indemnities by Customer.
9.6.1 Customer shall indemnify Biocair against:
220.127.116.11 all liabilities, losses, damage, claims, demands, costs and expenses incurred or suffered by Biocair: (a) that arise out of Biocair acting in accordance with Customer's instructions; or (b) that arise out of or in connection with any breach by Customer of any obligation or warranty in the Contract or from the negligence of Customer, its directors, officers, employees, subcontractors or agents;
18.104.22.168 without derogation from Clause 22.214.171.124 above, any liability assumed or incurred by Biocair when by reason of carrying out the Customer's instructions Biocair has reasonably become liable or may become liable to any other party.
126.96.36.199 all claims and demands whatsoever and by whomsoever (including by any Consignee, Owner or other third party) made or preferred in excess of the liability of Biocair under the Contract, regardless whether such claim or demand arises from or in connection with any breach of contract or negligence or other wrongdoing on the part of Biocair, its directors, officers, employees, subcontractors or agents, and against all liabilities, losses, damage, costs and expenses arising out of or in connection with such claims and demands.
9.6.2 Biocair shall without undue delay give to Customer notice in writing if Biocair becomes aware of any circumstances, including any claim or demand, in respect of which Biocair may seek indemnification under Clause 9.6.1.
9.6.3 Biocair shall deal with and control the handling and resolution of any circumstances, including any claim or demand, in respect of which Biocair seeks indemnification under Clause 9.6.1, in consultation with Customer to the extent Biocair considers appropriate. Customer shall provide to Biocair all such cooperation in relation thereto as Biocair may reasonably require.
9.7 Force Majeure.
9.7.1 Subject to Clause 9.7.2, neither Party shall be considered in breach of the Contract, or liable for any loss or damage which may be suffered by the other Party, as a direct or indirect result of the performance of any of the first Party's obligations under the Contract being prevented, hindered or delayed by reason of an Act of God, acts of public enemies, the authority of law, civil commotions, international or national or local disruptions to air or ground transportation networks or acts or omissions of public government authorities (including, but not limited to customs or quarantine officials) with actual or apparent authority, perils of air, weather conditions, mechanical delays, strike, lock-out, stoppage, restraint of labour, government action, war, terrorism, storm or any other circumstances or events beyond such first Party's reasonable control (Force Majeure).
9.7.2 A Party affected by Force Majeure shall:
188.8.131.52 promptly notify the other Party in writing of the Force Majeure and the actual or expected effects of it; and
184.108.40.206 use all reasonable efforts to resume performance and continue performance of the affected obligations.
9.7.3 If a Party's performance of its obligations under the Contract is affected by Force Majeure for a period of 28 days or more, then the other Party shall be entitled to terminate the Contract by giving to the affected Party written notice of termination having immediate effect.
9.8 Time limits for claims.
9.8.1 Any claim by Customer against Biocair arising in respect of any Services must be made in writing and notified to Biocair within 14 days of the date upon which Customer became or should have become aware of any event or occurrence alleged to give rise to such claim, and any claim not so made and notified shall be deemed to be waived and absolutely barred except in the case that Customer can show that it was impossible for it to comply with this time limit and that it has made the claim as soon as it was reasonably possible for it to do so. Notwithstanding the immediately preceding sentence, Biocair shall in any event be discharged of all liability whatsoever howsoever arising in respect of any Services provided (or which should have been provided) unless the applicable claim is issued and written notice thereof given to Biocair within nine months from the date of the event or occurrence alleged to give rise to a cause of action against Biocair.
9.8.2 The claim-filing regulations of the Federal Motor Carrier Safety Administration at 49 C.F.R. §370, et seq. are hereby adopted and incorporated herein by reference and shall apply to all loss, damage and delay claims filed with Biocair.
9.8.3 Lawsuits for loss, damage, injury or delay must be instituted against Biocair no later than two (2) years and one day from the day when written notice is given to the claimant that Biocair has disallowed the claim or any part or parts of the claim specified in the in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, Biocair shall not be liable, and such claims will not be paid.
9.8.4 Where a shipment is received damaged and the consignee has signed the delivery receipt as such, the consignee must make the original shipping/packing materials available for inspection for up to thirty (30) days at the original delivery location.
9.8.5 Receipt of a shipment by the consignee without written notification of loss, damage or delay on the delivery receipt will constitute a presumption that the shipment was delivered in good condition and in a timely manner.
9.8.6 In the event of a claim for concealed damage which is not discovered at the time of delivery, the Customer or the consignee must notify Biocair in writing within seven (7) days of the date of delivery. If more than seven (7) days elapse between date of delivery and Biocair’s receipt of such notification, the burden shall be on the Customer or the consignee to show good cause why timely notification of damage was not made at the time of delivery and that the damage did not occur after delivery. At the discretion of Biocair concealed damage claims may be denied for delay in notification.
9.9 Biocair's employees and subcontractors etc. Under no circumstances shall Customer make any claim against any directors, officers, employees, subcontractors or agents of Biocair, or against any other persons connected with Biocair, in any manner under or in connection with the Contract. Any such claim made by a Consignee, Owner or other third party shall be deemed for the purposes of the Contract (and in particular for the purposes of Clause 220.127.116.11) to be a claim against Biocair.
9.10.1 Biocair will not effect any insurance on behalf of Customer. However, if requested by Customer, Biocair may agree to arrange enhancements to its own insurance cover as it applies to risks and liabilities in connection with the Services, and to accept increases in the limits of its liability under the Contract accordingly. Any such increases will be effective only if agreed in writing by a duly authorised representative of Biocair, and subject to Biocair (on the basis it shall use reasonable efforts to do so) obtaining the applicable payment from its insurers in the event of a claim. Biocair shall be entitled to charge Customer the cost of effecting the applicable enhancements to Biocair's insurance cover as above, plus a reasonable administrative fee.
9.10.2 Customer understands and agrees that Biocair’s rates do not include insurance or other compensation for loss, damage or delay other than as expressly provided herein and limited hereby. Accordingly, Customer agrees that in the event it desires insurance coverage for any loss, it will obtain its own insurance, and that said insurance will contain a waiver of subrogation provision waiving any subrogation rights for and on behalf of such insurance company. In the event Customer fails to obtain a waiver of subrogation, Customer, at its expense, will defend, indemnify and hold harmless Biocair and any of its agents or subcontractors with respect to any claims made by Customer or any third parties acting as subrogees of Customer.
9.11 Duplicate claims. It is the intention of the parties that the limitations of Biocair’s liability for cargo loss, damage or delay claims as described in these Terms and Conditions shall apply to any and all cargo claims against Biocair. Therefore, in the event Biocair pays Customer for any cargo claim hereunder and subsequently receives another claim or lawsuit from or by the consignee, Owner of the goods or their subrogating insurance company seeking damages that are duplicative of or in excess of the limit of Biocair’s liability hereunder (“duplicate claim or lawsuit”), then Customer agrees to defend, indemnify and hold Biocair harmless from and against all damages, costs and attorney’s fees incurred by Biocair in defending or settling such duplicate claim or lawsuit.
10. TERM AND TERMINATION
10.1 Term. Unless terminated in accordance with its terms, the Contract shall continue in force without limit in time.
10.2 Termination without cause. Either Party may terminate the Contract by giving at least 3 months' written notice to the other.
10.3 Termination for cause. In addition to any other right or remedy of such Party, either Party may terminate the Contract by giving written notice to the other Party having immediate effect if:
10.3.1 the other Party commits any material breach of any of the terms of the Contract which in the case of a breach capable of remedy is not remedied by the other Party within 28 days of the date of a notice to the other Party specifying the breach and requiring its remedy;
10.3.2 the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
10.3.3 the other Party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
10.3.4 a resolution is passed, or an order is made, for the winding up of the other Party;
10.3.5 an order is made for the appointment of an administrator or an administrator is appointed over the other Party;
10.3.6 the other Party makes an assignment for the benefit of creditors, a voluntary arrangement with its creditors or becomes subject to an administration order;
10.3.7 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or to assume the obligations imposed on the other Party under the Contract);
10.3.8 the other Party ceases or threatens to cease to carry on all or substantially all of its business; or
10.3.9 anything analogous to any of Clauses 10.3.3 through 10.3.7 occurs in relation to the other Party in any foreign jurisdiction.
10.4 Material breach partially defined. Without limiting the scope of Clause 10.3.1, a breach of any of Clauses 5.3, 5.4, 7, 8, 9.6, 9.9 and 12 shall be deemed a material breach.
11. CONSEQUENCES OF TERMINATION
11.1 Accrued rights. Termination of the Contract (however arising) shall be without prejudice to the rights of the Parties accrued prior to termination or to any other right or remedy of either Party.
11.2 Survival of certain terms. All terms of the Contract which in order to give full effect to their meanings need to survive termination of the Contract shall do so. In particular Clauses 6, 7, 8, 9, 11, 12, 13 and 14 shall survive any termination of the Contract.
11.3 Financial. Following any termination of the Contract Customer shall within 7 days pay all outstanding invoices of Biocair in respect of amounts payable under the Contract, and shall within 7 days of the invoice date pay any such invoices rendered by Biocair after termination of the Contract.
11.4 Other consequences. Upon any termination of the Contract each Party shall within 14 days return to the other or, if instructed by the other in writing, destroy or delete all documents or records (in any form) and materials recording or otherwise embodying any Confidential Information of the other Party. Notwithstanding this obligation, each Party shall be entitled to retain such documents and records as are required to comply with Applicable Laws or other terms of the Contract; and neither Party shall be obliged to delete any copies of documents or records made in the process of backing up of its computer systems for security purposes (but it shall keep those documents and records securely, and in particular in compliance with its obligations under the Contract regarding Confidential Information).
12.1 Definitions. In this Clause 12:
12.1.1 Key Employee means an employee who is not employed in an administrative or secretarial capacity and the loss of whom would have a material detrimental effect on the business of the applicable Party or, as the case may be, a subcontractor of the applicable Party; and
12.1.2 Relevant Period means the period of 12 months immediately prior to: (a) the termination of the Contract, or, as the case may be; (b) the completion of the last of the Services provided under the Contract.
12.2 Restrictions on solicitation etc. Neither Party shall:
12.2.1 during the provision of the Services; or
12.2.2 for a period of 6 months after the provision of the Services;
directly or indirectly seek to solicit or entice away for employment or other engagement any Key Employee of the other Party or of any subcontractor of the other Party under the Contract with whom (in either case) the first Party had material contact or dealings in connection with the Contract during the Relevant Period.
13.1 Announcements/publicity. Biocair shall be entitled for the purposes of its own publicity to name Customer as its customer. Subject to that, neither Party shall issue any press release or other announcement, or otherwise publicise the relationship between the Parties embodied in the Contract, except with the prior written approval of the other Party. Such approval may be given, withheld or conditioned in the other Party's absolute discretion.
13.2 Variation. No addition, amendment to or modification of the Contract shall be effective unless it is in writing and signed by the duly authorised representative of each Party (e-mail is not sufficient).
13.3 Severability. If any part of the Contract is found to be invalid or unenforceable then such part of the Contract shall be deemed removed from the Contract, but without affecting the remainder of the Contract. However in that event the Parties shall in good faith negotiate and endeavour to agree valid and enforceable replacement terms that as nearly as possible achieve their original intent embodied in the removed part.
13.4.1 Biocair may without consent assign its rights and obligations under the Contract to any person to whom it transfers all or substantially all of its business and assets.
13.4.2 Subject to Clause 13.4.1, neither Party shall without the prior written consent of the other (which shall not unreasonably be withheld or delayed) assign any of its rights or obligations under the Contract.
13.4.3 The Contract shall bind and shall continue in force for the benefit of any permitted assignee of either Party.
13.5.1 Any notice to be given under the Contract shall be in writing and shall be delivered personally, or sent by facsimile transmission, or by commercial courier, or by e-mail, to the Party required to receive the notice at its address, facsimile number or e-mail address (as the case may be) as set out in the Contract or as may otherwise be specified by the relevant Party by notice in writing to the other Party.
13.5.2 Any notice shall be deemed to have been duly received: (a) if delivered personally, when left at the recipient Party's address, marked for the attention of an officer or employee of the recipient Party known to the Party giving notice; or (b) if sent by facsimile transmission, at 9.00 am on the next business day (in the recipient's location) after sending, marked for the attention of such officer or employee, with correct transmission confirmed; or (c) if delivered by commercial courier, marked for the attention of such officer or employee, on the date and at the time that the courier's delivery receipt is signed; or (d) if sent by e-mail, at 9.00 am on the next business day (in the recipient's location) after sending to the e-mail address of such officer or employee, provided receipt is confirmed (by any means).
13.5.3 The provisions of this Clause 13.5 shall not apply to the service of any proceedings or other documents in any legal action.
13.6 Waiver. No delay by a Party in exercising any right or enforcing any provision of the Contract shall be deemed a waiver of such right or provision.
13.7 Entire agreement. The Contract supersedes any arrangements, undertakings, promises or agreements made or existing between the Parties prior to or simultaneously with the Contract and relating to the subject-matter of the Contract, and constitutes the entire understanding between the Parties in relation to the subject matter of the Contract. Without limiting the scope of the immediately preceding sentence, no terms and conditions incorporated into or referred to in any Customer Order placed by Customer or in any acceptance of a Biocair Quotation, or in any other documentation issued by Customer, shall have any effect. No terms or conditions not expressly set out in the Contract form part of it.
13.8 No partnership, etc. The Contract shall not constitute the Parties partners or either Party the agent of the other for any purpose. The Parties are independent contractors.
13.9 Costs. Except to the extent expressly provided to the contrary in the Contract, each Party shall bear its own costs and expenses in relation to the preparation, negotiation and performance of the Contract.
13.10 Interpretation. The headings and captions in the Contract (including those at the beginning of Clauses) are for convenience only and shall not affect its interpretation; all references to Clauses are references to clauses in these Terms and Conditions; references to a person shall be deemed to include an individual, a company or an unincorporated business or other body, whether or not it has separate legal personality; references to a statute or other legislation shall be deemed to include any modification, extension or re-enactment thereof for the time being in force; references importing the singular shall include the plural and vice versa; and words such as in particular, including, for example, such as and etc, or other words indicating that examples falling within more general wording follow, shall not be construed as limiting in any way the scope of the corresponding more general wording.
13.11 Third party rights. All indemnities in the Contract in favour of a Party, and all provisions of the Contract that purport to limit or exclude the liability of a Party, are intended also to be for the benefit of all directors, officers, employees, subcontractors and agents of such Party, and of any other persons connected with that Party, and shall accordingly be enforceable by each of them as well as or instead of by the applicable Party, and on the basis that any limit on the liability of a Party shall apply to that Party and all those other persons in the aggregate. Subject to the immediately preceding sentence, the Contract is not intended to confer rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no term of the Contract may be enforced by any person who is not a party to the Contract.
13.12 Counterparts. The Contract may be executed in counterparts, each of which when executed and delivered (including if delivered by facsimile transmission or by e-mail in PDF format) shall constitute an original of the Contract, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
14. GOVERNING LAW AND DISPUTE RESOLUTION
14.1 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in all respects in accordance with the laws of the United States.
14.2 Dispute resolution. The Parties shall endeavour to resolve any dispute arising out of or in connection with the Contract by negotiation between their representatives who have the authority to resolve the dispute. The Parties may agree to try and resolve such dispute through mediation, expert determination or other means appropriate to the dispute; and no Party shall unreasonably refuse to take part in such process. The Parties irrevocably agree that any dispute arising out of or in connection with the Contract or its subject matter or formation (including any non-contractual dispute or claim) that is not resolved by other means shall be subject to the exclusive jurisdiction of the federal and state courts of the United States.