In these Terms and Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when U.S.A. located banks are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.4.
Contract: the contract between KCS-Online and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from KCS-Online.
Force Majeure Event: has the meaning given in clause 9.
Goods: the goods (or any part of them) set out in the Purchase Order or Equivalent.
Incoterms: the uniform rules for the interpretation of trade terms published by the International Chamber of Commerce and applicable at the date hereof.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order or otherwise communicated to KCS-Online.
Quotation: KCS-Online's catalog list price or written quotation to the Customer as appropriate for the Goods.
Specification: any specification for the Goods that is reported on the KCS-Online catalog or agreed to in writing by the Customer and KCS-Online.
Supplier: KCS-Online, a division of Kinentia Biosciences LLC, a New York State Limited Liability Company with offices located at 9 University Place, Rensselaer, NY 12144 U.S.A.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, including without limitation any terms set out or referred to in the Customer's purchase order.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 Any provided Quotation shall be valid for 60 days from issue unless otherwise specified.
2.4 The Contract shall come into existence when KCS-Online either receives a confirmed order via its website ordering system or written acceptance of a provided quotation.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of KCS-Online which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by KCS-Online and any descriptions or illustrations contained in KCS-Online's advertising materials are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.7 The Customer may not cancel or amend any Order once accepted. If the Customer wishes to change the delivery date(s), quantities or types of Goods ordered, or the Specification, it shall so notify KCS-Online. KCS-Online shall notify the Customer of any additional charges payable in relation to such change and may at its discretion agree to implement such change subject to the payment by the Customer of such charges.
3.1 Delivery of the Goods shall be completed:
a. if the Customer is responsible for shipment, when KCS-Online notifies the Customer that the Goods are ready for collection; or
b. if KCS-Online is responsible for shipment, when KCS-Online delivers the Goods to the delivery point specified in the Order.
3.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Customer may not cancel its Order unless KCS-Online fails to deliver the Goods within 30 days after the estimated delivery date for catalog based items. In the case of non-catalog custom synthesis projects, KCS-Online shall keep customer informed of both project status and projected delivery dates. In all cases, in the event that KCS-Online is unable to deliver Goods KCS-Online shall not be liable for any failure to deliver or delay in delivery of said Goods, but shall make reasonable efforts to aid customer find an alternate source of goods of comparable price and quality.
3.3 KCS-Online shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide KCS-Online with any instructions that are relevant to the supply of the Goods or to make adequate provision for the loading or unloading of the Goods.
3.4 If the Customer fails to accept the Goods or to collect the Goods within three Business Days of KCS-Online notifying the Customer that the Goods are ready for collection (as applicable), then, except where such failure or delay is caused by a Force Majeure Event or KCS-Online' failure to comply with its obligations under the Contract, KCS-Online may store the Goods until they are collected by the Customer, and charge the Customer for all related costs and expenses including any insurance costs.
3.5 If 10 Business Days after the day on which KCS-Online notified the Customer that the Goods were ready for delivery the Customer has not accepted or collected them, KCS-Online may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.6 The Customer shall not be entitled to reject the Goods if KCS-Online delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
3.7 The Customer shall inspect the Goods promptly after delivery and shall be deemed to have accepted any Goods 5 Business Days after their delivery unless the Customer has notified KCS-Online to the contrary. If the Goods are damaged or otherwise delivered in material breach of the Contract, the Customer may reject them and shall:
a. Provide KCS-Online with written notice detailing the reason for rejection; and
b. Store the Goods until KCS-Online has arranged for their collection.
3.23.8 KCS-Online may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1 KCS-Online warrants that on delivery, and for a period of 10 business days from the date of delivery (warranty period), the Goods shall:
a. Confirm in all material respects with their description and any applicable Specification; and
b. Be free from material defects in design, material and workmanship.
4.2 Subject to clause 4.3, if:
a. The Customer gives notice in writing to KCS-Online during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
b. KCS-Online is given a reasonable opportunity of examining such Goods; and
c. The Customer (if asked to do so by KCS-Online) returns such Goods to KCS-Online' place of business at KCS-Online' cost,
d. KCS-Online shall, at its option, repair or replace the defective Goods (including by replacement with alternative goods of equivalent or improved function), or refund the price of the defective Goods in full. Such repair, replacement or refund shall be the Customer's sole and exclusive remedy in relation to the non-compliance of the Goods with the warranty set out in clause 4.1.
4.3 KCS-Online shall not be liable for Goods; failure to comply with the warranty set out in clause 4.1 in any of the following events:
a. The Customer makes any further use of such Goods after giving notice in accordance with clause 4.2;
b. The defect arises because the Customer failed to follow KCS-Online' oral or written instructions as to the storage, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
c. The Customer alters or repairs such Goods without the written consent of KCS-Online;
d. The defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
e. The Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 These Conditions shall apply to any repaired or replacement Goods supplied by KCS-Online, provided that the warranty set out in clause 4.1 shall apply to any repaired or replacement Goods only for the warranty period remaining in respect of the Goods originally repaired or replaced.
4.5 Unless otherwise agreed to prior to sale provided goods are intended for research purposes only and are not intended for any other use (including without limitation for use in the production of food, drugs or cosmetics, for diagnostic purposes, or for any other direct use in relation to humans). The Customer shall use, store, install and maintain the Goods only in accordance with any user manuals, technical documentation, operating instructions, safety information and other recommendations or instructions provided by KCS-Online. Without limiting the foregoing, the Customer shall be responsible for conducting its own risk and hazard analysis in relation to its use, storage, installation and maintenance of the Products and ensuring that such activities together with the disposal of the Products are safe in all respects and compliant with all applicable laws. The Customer shall indemnify KCS-Online against all losses, liabilities, costs and damages incurred by KCS-Online (including legal fees) in relation to any third party claim or action against KCS-Online arising from the Customer's breach of its obligations in this clause.
5.1 Unless otherwise agreed to prior to shipment the risk in the Goods shall pass to the Customer on shipment from KCS-Online's facilities.
5.2 Title to the Goods shall not pass to the Customer until KCS-Online receives payment in full (in cash or cleared funds) for the Goods.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
a. Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as KCS-Online property;
b. Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
c. Notify KCS-Online immediately if it becomes subject to any of the events listed in clause 7.1;
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.1, then, without limiting any other right or remedy KCS-Online may at any time:
a. Require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
b. If the Customer fails to do so promptly, make reasonable efforts to recover any goods from additional clients or third parties.
6.1 The price of the Goods shall be the price depicted in the KCS-Online catalog, or set out in a Customer Purchase Order accepted by KCS-Online, or in a Quotation provided by KCS-Online to customer.
6.2 KCS-Online may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond KCS-Online' control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs).
6.3 The price of the Goods is exclusive of amounts in respect of:
a. Any applicable taxes;
b. Costs and charges for packaging, insurance and transport of the Goods (where KCS-Online is responsible for carriage); and
c. Any additional charges which KCS-Online is entitled to charge under the Contract,
d. Which shall in each case be invoiced to the Customer.
6.4 KCS-Online may invoice the Customer for the Goods on or at any time after the completion of dispatch of goods/services.
6.5 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice to the bank account nominated in writing by KCS-Online. Payment can be made (preferably) by wire transfer or bank check.
6.6 If the Customer fails to make any payment due to KCS-Online under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 7.5% per annum above current base interest rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
6.7The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding.
7.1 KCS-Online may terminate the Contract with immediate effect by giving written notice to the Customer if:
a. The Customer fails to make any payment by its due date under the Contract or is otherwise in material breach of the Contract and (where such breach is remediable) has not remedied such breach within ten Business Days of receiving notice from KCS-Online requiring its remedy; or
b. The Customer ceases or threatens to cease to trade, becomes insolvent or is the subject of insolvency proceedings, makes an arrangement or composition with its creditors, has a receiver and/or administrator appointed over its undertaking or is the subject of any similar or equivalent action or occurrence, or a creditor or encumbrancer of the Customer attaches or takes possession, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets.
7.2 On termination of the Contract for any reason the Customer shall immediately pay to KCS-Online all of KCS-Online' outstanding unpaid invoices and interest.
7.3 Termination of the Contract, however arising, shall not affect any of the parties rights, remedies, obligations and liabilities that have accrued as at termination.
7.4 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect, including clauses 1, 4, 5, 8, 9 and 10.
8.1 Subject to clause 8.3:
a. KCS-Online shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of reputation or goodwill (in each case whether direct or indirect) or any indirect or consequential loss arising under or in connection with the Contract; and
b. KCS-Online' total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
8.2 Nothing in the Contract shall limit or exclude KCS-Online' liability for any matter in respect of which liability cannot be excluded or limited by law.
8.3 All warranties, conditions and other terms not expressly set out in these Conditions in relation to the Goods, including (without limitation) those implied by statute or common law are excluded to the fullest extent permitted by law.
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third parties), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.