ACL means the Australian Consumer Law as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Customer means the purchaser of the Goods and/or Services (including its officers, directors, employees, representatives and agents, successors and assigns).
Defective means means faulty, damaged, or not in accordance with the Customer’s Order and Defect is to be construed accordingly.
Goods means any goods and products supplied by United Bioresearch including those supplied in the course of providing Services.
Loss includes, but is not limited to, costs (including party to party legal costs and United Bioresearch’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods and/or Services placed by a Customer as varied in writing from time to time by the parties.
PPS Law means:
(a) the Personal Property Securities Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.
Services means the services to be provided by United Bioresearch to the Customer in accordance with these Terms.
Terms means these United Bioresearch Products purchase terms and conditions.
United Bioresearch means United Bioresearch Products Pty Ltd (ACN 159 466 298).
General
(a) These Terms apply to all transactions between the Customer and United Bioresearch relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These Terms take precedence over terms contained in any document of the Customer or elsewhere.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) United Bioresearch may amend any details in a quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
Limited authorisation for use
(a) The Goods are for use in research only, and are not for diagnostic, therapeutic or other use.
(b) Unless United Bioresearch expressly consents in writing, the Customer shall have no rights to use any United Bioresearch products in any commercial application, including manufacturing, quality control, or commercial services. If Customer desires to obtain such use rights, the Customer may contact United Bioresearch to seek such rights.
(c) The Customer agrees not to use United Bioresearch products as antigens or any other material to generate antibodies, single domain antibodies, or any other kind of binding reagents in any way, shape, or form.
(d) It is solely the Customer’s responsibility to acquire additional rights by request to United Bioresearch related to any use outside the scope of this authorisation.
Orders
(a) All Orders for Goods must be placed in the manner and form required by United Bioresearch from time to time, unless otherwise agreed.
(b) Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
(c) Placement of an Order by the Customer signifies acceptance by the Customer of these Terms and any quote or pricing list provided by United Bioresearch relating to that Order.
(d) United Bioresearch may in its absolute discretion refuse to provide Goods or Services where:
(i) Goods are unavailable for any reason whatsoever;
(ii) where applicable, credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of United Bioresearch, associated with the Customer under the same or another supply contract, has not been received by United Bioresearch.
(e) Any changes to an Order requested by the Customer may be made only with advance written approval of United Bioresearch.
(f) United Bioresearch reserves the right to vary the Order to include any additional charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. United Bioresearch has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
(g) The Customer may not cancel an Order unless cancellation is expressly approved by United Bioresearch in writing. Where an Order is cancelled, the Customer indemnifies United Bioresearch against any Losses incurred by United Bioresearch as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
Delivery
(a) All accepted Orders will be delivered from United Bioresearch’s shipping point using United Bioresearch’s choice of carrier if not agreed otherwise in writing.
(b) Unless otherwise arranged and agreed in writing by United Bioresearch:
(i) for deliveries within Australia, Goods are shipped Delivery Duty Paid (DDP, Incoterm 2024), and United Bioresearch is responsible for all transportation, shipping and handling charges to the delivery destination;
(ii) for deliveries to New Zealand, Goods are shipped with FedEx and the Customer is responsible for all transportation, shipping and handling charges to the delivery destination which will be prepaid and added to the invoice. A customs clearance fee may be payable to FedEx by the Customer; and
(iii) for deliveries outside of Australia and New Zealand, Goods are shipped Ex Works (EXW, Incoterm 2024) plant of manufacture or designated warehouse and the Customer is responsible for all transportation, shipping and handling charges to the delivery destination which will be prepaid and added to the invoice.
(c) Delivery of Goods may be in a single delivery or instalments.
(d) Any specified delivery dates stated by United Bioresearch are estimates only and do not represent a promise by United Bioresearch to deliver Goods at a certain date.
Title and risk
(a) For Orders within Australia and New Zealand, risk in Goods passes to the Customer immediately upon delivery to the Customer’s store, warehouse, laboratory or premises. For Orders outside of Australia and New Zealand, risk in Goods passes to the Customer on shipment from United Bioresearch’s plant of manufacture or designated warehouse.
(b) Property and title in Goods supplied to the Customer under these Terms do not pass to the Customer until all money (including money owing in respect of other transactions between United Bioresearch and the Customer) due and payable to United Bioresearch by the Customer have been fully paid.
(c) Where Goods are supplied by United Bioresearch to the Customer without payment in full, the Customer:
(i) is a bailee of the Goods until property in them passes to the Customer;
(ii) irrevocably appoints United Bioresearch to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of United Bioresearch with respect to the Goods under applicable law;
(iii) must be able upon demand by United Bioresearch to separate and identify as belonging to United Bioresearch the Goods supplied by United Bioresearch from other goods which are held by the Customer;
(iv) must not allow any person to have or acquire any security interest in the Goods;
(v) agrees that United Bioresearch may repossess the Goods if payment is not made within 30 days (or such longer time as United Bioresearch may, in its complete discretion, approve in writing) of the supply of the Goods; and
(vi) the Customer grants an irrevocable licence to United Bioresearch or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies United Bioresearch for any damage to property or personal injury which occurs as a result of United Bioresearch entering the Customer’s premises.
(d) Where Goods are supplied by United Bioresearch to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by United Bioresearch in respect of those Goods, and:
(i) the Customer makes a new object from the Goods, whether finished or not;
(ii) the Customer mixes the Goods with other goods; or
(iii) the Goods become part of other goods (New Goods),
the Customer agrees with United Bioresearch that the ownership of the New Goods immediately passes to United Bioresearch. The Customer will hold the New Goods on trust for United Bioresearch until payment of all sums owing to United Bioresearch whether under these terms of trade or any other contract have been made. United Bioresearch may require the Customer to store the New Goods in a manner that clearly shows the ownership of United Bioresearch.
(e) For the avoidance of doubt, under paragraph 6(d), the ownership of the New Goods passes to United Bioresearch at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
(f) Despite paragraph 6(c), the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:
(i) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for United Bioresearch in a separate account, until all amounts owned by the Customer to United Bioresearch have been paid; or
(ii) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to United Bioresearch upon United Bioresearch giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints United Bioresearch as its attorney.
(g) Where Goods are supplied by United Bioresearch to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by United Bioresearch in respect of those Goods, the Customer acknowledges that United Bioresearch has a right to register and perfect a personal property security interest.
(h) If:
(i) a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or United Bioresearch determines (based on legal advice) that this is the case; and
(ii) in United Bioresearch’s opinion, the PPS Law:
(A) does or will adversely affect United Bioresearch’s security position or obligations; or
(B) enables or would enable United Bioresearch’s security position to be improved without adversely affecting the Customer,
United Bioresearch may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new terms and conditions) that in United Bioresearch’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 6(h)(ii)(A) or improve the security position as contemplated in paragraph 6(h)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in the United Bioresearch’s opinion, United Bioresearch’s security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, United Bioresearch may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to United Bioresearch any money owed to United Bioresearch by the Customer immediately.
Pricing
(a) Unless otherwise agreed in writing, all sales of Goods are made by United Bioresearch at the price prevailing at the time an Order is placed and in accordance with United Bioresearch’s published price list for such Goods.
(b) The Customer acknowledges that where the Customer requests shipment of any Goods under Order after 6 months from the date of Order, United Bioresearch’s standard prices for Goods at the time of shipment may apply.
(c) United Bioresearch reserves the right at any time between the time of quotation and/or Order and the date of delivery of Goods or Services, to make reasonable adjustments to prices and quotations where fluctuations have occurred in the costs of labour, materials, goods or transport, or in exchange rates or duties.
(d) United Bioresearch will promptly provide the Customer with any notice of revision to its published applicable price list.
Invoicing and payment
(a) The Customer must pay an invoice issued by United Bioresearch within 30 days of a valid tax invoice being issued to the Customer.
(b) United Bioresearch reserves the right to charge interest on overdue accounts at an interest rate calculated daily at the Cash Rate Target published by the Reserve Bank of Australia in force at the time the payment is due plus 2%.
(c) The Customer is liable for all Loss incurred by United Bioresearch in connection with the recovery of overdue payments due and payable by the Customer.
(d) The Customer is not entitled to retain any money owing to United Bioresearch regardless of any default or alleged default by United Bioresearch of these Terms, including (but not limited to) the supply of allegedly Defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a consumer guarantee under the ACL.
GST
Where applicable, the Customer and United Bioresearch agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
Acceptance of Goods
(a) If the Customer fails to advise United Bioresearch in writing of any Defective Goods within 10 days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not Defective. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a consumer guarantee under the ACL.
(b) In the event the Customer makes a claim to United Bioresearch concerning Defective Goods within 10 days of delivery, the Customer agrees that it will leave such Goods unpacked and otherwise intact for a period of no less than 14 days following the date of written claim, and will make such Goods available for inspection by United Bioresearch representatives, the motor carrier, and/or a third party logistics provider.
(c) If United Bioresearch is satisfied (acting reasonably) that the Goods are Defective and the Defect has not been caused by the storage or handling of the Customer then United Bioresearch agrees to resupply the quantity of Defective Goods or reimburse the Customer to the value of Defective Goods (at United Bioresearch’s option).
(d) The Customer must deal with the Defective Goods in accordance with United Bioresearch’s reasonable instructions. United Bioresearch shall bear the reasonable costs of the Customer in complying with United Bioresearch’s instructions.
Intellectual property
(a) As between the parties, United Bioresearch shall retain all right, title and interest in and to the Goods, including all modifications, derivative works or improvements, and all related intellectual property rights. Customer shall not (and shall not allow any other person or entity to):
(i) decompile, disassemble, reverse assemble, or reverse engineer the Goods;
(ii) remove any product identification other notices used in connection with the Goods;
(iii) modify or create a derivative work of the Goods;
(iv) remove or export any products from Australia in violation of applicable laws or regulations; or
(v) relicense, provide, lease or lend the Goods to any third party.
Confidential information
(a) All non-public, confidential, or proprietary information of United Bioresearch, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by United Bioresearch to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be otherwise used, disclosed or copied unless authorised by United Bioresearch in writing.
(b) Upon United Bioresearch’s request, the Customer shall promptly return all documents and other materials received from United Bioresearch. United Bioresearch shall be entitled to injunctive relief for any violation of this Section, without posting bond or other security.
(c) This clause 12 shall not apply to information that is:
(i) generally available in the public domain;
(ii) lawfully known to the Customer at the time of disclosure; or
(iii) rightfully obtained by the Customer on a non-confidential basis from a third party.
(d) The obligations of the Customer set out in this clause 12 will survive termination of these Terms.
Warranty
(a) United Bioresearch warrants that its Goods shall, at the time of delivery of the Goods and for a period until the “expiration” date, conform to the description of such Goods as provided to the Customer by United Bioresearch through United Bioresearch’s product directory, analytical data or other then-current literature.
(b) United Bioresearch’s warranties made in connection with the Goods shall not be effective if United Bioresearch has determined, in its sole discretion, that the Customer has misused the Goods in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by United Bioresearch.
(c) The Customer acknowledges that:
(i) prior to placing an Order for Goods with United Bioresearch, the Customer has satisfied itself as to the Goods’ suitability for the Customer’s purpose; and
(ii) United Bioresearch makes no warranty or representation about the Goods’ fitness for purpose or suitability for the Customer.
(d) United Bioresearch gives no warranty in relation to the Services provided or supplied.
Termination
In addition to the express rights of termination provided in these Terms, a party may terminate these Terms by giving 30 days written notice to the other party.
Exclusions and limitation of liability
(a) The Customer expressly agrees that use of the Goods and Services is at the Customer’s risk. To the full extent allowed by law, United Bioresearch’s liability for breach of any term implied into these Terms by any law is excluded.
(b) All information, specifications and samples provided by United Bioresearch in relation to the Goods or Services are approximations only and, subject to any consumer guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery or to make any claim in respect of them.
(c) United Bioresearch is not liable for any Loss to the extent caused by:
(i) the Customer failing to properly maintain or store any Goods;
(ii) the Customer using the Goods for any purpose other than that for which they were designed;
(iii) the Customer continuing the use of any Goods after any Defect became apparent or should have become apparent to a reasonably prudent operator or user;
(iv) the Customer failing to follow any instructions or guidelines provided by United Bioresearch; or
(v) normal deterioration of the Goods.
(d) To the greatest extent under applicable law, the maximum liability, if any, of United Bioresearch to the Customer or any other party for all Loss arising under or in connection with the supply of any Goods or Services is limited to an amount not exceeding the purchase price of the Goods that gave rise to such Loss.
(e) To the fullest extent permissible at law, United Bioresearch is not liable for any indirect, incidental, consequential, special, exemplary or punitive damages, including without limitation, lost revenues and profits, loss of business, downtime, property damage, intellectual property infringement, loss of goodwill or any economic damages or loss of any kind, arising out of or in any way connected with the provision of or failure to provide Goods and Services, or otherwise arising out of the provision of Goods and Services, whether foreseeable or not and whether based on contract, tort, negligence, strict liability or otherwise, even if United Bioresearch has been advised of the possibility of damages.
(f) The Customer acknowledges that the Goods or Services are not for personal, domestic ,household, therapeutic, or diagnostic purposes.
(g) The ACL may give to the Customer certain consumer guarantees (if the Customer is defined as a consumer in section 3 of the ACL), which cannot be restricted, limited or varied.
Indemnity
(a) The Customer indemnifies and must keep indemnified United Bioresearch and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any Loss, claim or demand arising from or occurring in connection with the provision of Goods or Services, any Order or the subject matter of these Terms.
(b) The indemnity in this clause 16 includes, but is not limited to, any legal costs incurred by United Bioresearch in relation to meeting any claim or demand or any party or party legal costs for which United Bioresearch is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these Terms.
Force Majeure
(a) United Bioresearch shall not be liable for any failure or delay in performing an obligation under these Terms that is due to any circumstance beyond its reasonable control, including, but not limited to: acts of God, accident, riots, war, terrorist act, epidemic, pandemic (including the Covid-19 pandemic), quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalised lack of availability of materials or components, electricity or energy, transport difficulties, or other unforeseeable causes (Force Majeure).
(b) Either United Bioresearch or the Customer may elect to terminate these Terms if a Force Majeure event continues for a period exceeding 30 days.
Governing law
These Terms are governed in all respects by the laws of the State of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales.
Assignment
(a) The Customer may not assign its rights or delegate its obligations under these Terms (by operation of law or otherwise) without United Bioresearch’s prior written consent.
(b) United Bioresearch may assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms provided that the assignee agrees to assume any duties and obligations of United Bioresearch owed to the Customer under these Terms.
Amendment
These Terms may only be amended in a writing signed by customer and an executive officer of United Bioresearch.
Entire Agreement
These Terms and any written variations agreed to in writing by United Bioresearch constitute the entire agreement between the parties with respect to the subject matter of these Terms.
Severability
If any term or provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
Waiver
No waiver by any party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.