1. INTERPRETATION
The following definitions and rules of interpretation apply to these Terms and Conditions.
1.1 Definitions:
Business Day: means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Contract: means the contract between OC and the Customer for the supply of Services to which these Terms and Conditions relate (whether appended, incorporated or attached).
Credit Check: company or personal information may be passed on to credit reference agencies and finance providers to perform a credit search following receipt of your Order.
Customer: means the person or firm who purchases Services from OC.
Deposit: is the sum that may be paid at the time of the Order.
Donor: means a person of interest to the customer giving a sample of breath or saliva (via swab)
Finance Agreement: you may be introduced to a panel of finance providers following receipt of your Order and the completion of a Credit Check to enter into a finance agreement with a finance provider in order to purchase or lease the equipment identified in your Order. We may receive a commission payment from these finance providers.
Initial Payment: the initial rental payable to OC and will be set out in the Order and/or Finance Agreement.
Non-Negative Sample: means a sample that has the presence of one or more drugs in a sample (i.e. a positive result for the presence of drugs)
OC: means OdiliaClark Ltd (a company incorporated and registered in England and Wales with registered number 11683708).
Purchase Order: means the Customer’s order for Services as set out in the Customer’s electronic order form or the Customer’s written acceptance of a quotation by OC, as the case may be.
Party: means a party to the Contract and Parties shall be construed accordingly.
Services: means the services supplied by OC to the Customer as set out in the Specifications.
Specifications: means the description or specification of the Services provided [in writing] by OC to the Customer.
Terms and Conditions: means these terms and conditions as amended from time to time.
Testing: means measurement for the presence of levels of alcohol or drugs in a donor’s system
1.2 Interpretation:
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. A reference to writing or written includes [fax and email OR but not email] [but not text messages via mobile phone].
1.2.3 A reference to a condition is a reference to a condition of these Terms and Conditions.
2. BASIS OF CONTRACT
2.1 The Purchase Order constitutes an offer by the Customer to purchase Services in accordance with these Terms and Conditions.
2.2 A Purchase Order will be valid only if it is sent to OC by letter or electronic mail, or by using OC approved electronic order forms. In the event that a Customer is unable to send a Purchase Order form, an Order may be placed in writing via letter or electronic mail.
2.3 A Purchase Order placed with OC shall only be deemed to be accepted by OC when:
at which point, and on which date the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties and supersedes and replaces all prior price quotations, agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter.
2.5 These Terms and 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.
2.6 Any quotation given by OC shall not constitute an offer and is only valid for a period of [30] Business Days from its date of issue, or as otherwise indicated on the quotation.
2.7 No officer (other than the Managing Director of OC), employee, agent or subcontractor of OC has the authority to alter or waive any of these Terms and Conditions or to make any representation which conflicts with or purports to override any of these Terms and Conditions; and no such alteration, waiver or representation shall be binding upon OC, unless it is in writing and signed by the Managing Director of OC.
2.8 Any samples, drawings, descriptive matter or advertising issued by OC and any descriptions of the Equipment or illustrations or descriptions of the Services contained in OC’s brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.
3. SUPPLY OF SERVICES
3.1 OC shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 OC shall use reasonable endeavours to meet any performance dates specified in any written correspondence or other agreements, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 OC reserves the right to amend the Specifications if necessary to comply with any applicable law or regulatory requirements, or if the amendment will not materially affect the nature or quality of the Services, and OC shall notify the Customer in any such event.
4. SUPPLY OF EQUIPMENT (WHERE APPLICABLE)
4.1 OC shall supply any Equipment to the Customer in accordance with the Contract and shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Customer’s quiet possession of the Equipment.
5. CUSTOMER’S GENERAL OBLIGATIONS
5.1 The Customer shall:
5.1.1 ensure that the terms of the Purchase Order are complete and accurate;
5.1.2 co-operate with OC in all matters relating to the Services;
5.1.3 provide OC, its employees, agents, consultants and sub-contractors, with access to the customer’s premises, office accommodation and other facilities as reasonably required by OC;
5.1.4 provide OC with such information and materials as OC may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
5.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
5.1.6 ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed and operated in a proper manner by trained competent staff in accordance with any operating instructions provide by OC; and
5.1.7 make no alteration to the Equipment and shall not remove any existing components from the Equipment.
5.2 If OC’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (a “Customer Default”):
5.2.1 without limiting or affecting any other right or remedy available to it, OC shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays OC’s performance of any of its obligations;
5.2.2 OC shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from OC’s failure or delay to perform any of its obligations as set out in this condition 4.2; and
5.2.3 the Customer shall reimburse OC on written demand for any costs or losses sustained or incurred by OC arising directly or indirectly from the Customer Default.
6. PRICE AND TERMS OF PAYMENT
6.1 OC shall be entitled to charge the Customer for:-
6.1.1 Any fees agreed to be payable by the customer in writing; and
6.1.2 Any expenses reasonably incurred by OC and/or the individuals whom OC engages in connection with the Services including venue expenses, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and as required by OC for the performance of the Services.
6.2 All amounts payable by the Customer under the Contract are exclusive of all applicable taxes (including sales, use and VAT) and are based on OC’s tariffs and fee rates applicable at the time of submission of the Order. Applicable taxes are those in force at the date of invoicing.
6.3 The Customer shall pay each invoice submitted by OC:
(a) as set out in the Quotation or any Subscription Agreement, or in the absence of such provisions, forthwith on receipt of the invoice, and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier,
Time for payment shall be of the essence of the Contract.
6.4 Any dispute about an invoice must be raised by the Customer in writing within 30 days of the invoice date. Such dispute will not entitle the Customer to defer payment of any amount due under the Contract.
6.5 If the Customer fails to make payment due to OC under the Contract by the due date, the Customer shall pay:
5.5.1 an administration fee of £25.00 in respect of OC’s costs in dealing with such outstanding payment; and
5.5.2 interest on the overdue sum from the due date until the date of payment of the overdue sum (whether before or after judgment) at the rate of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower.
6.6 All invoices are subject to a minimum invoice charge of £150.00. OC has the right to charge an administrative fee of up to £25.00 to re-issue an invoice for any reason.
6.7 The payment method is Paypal, bank transfer or direct debit (to such account specified by OC to the Customer in writing from time to time). Any other method of payment must receive prior written agreement from OC.
6.8 Upon receipt and acceptance by OC of a Purchase Order, OC is entitled to require payment of up to 100% of the quoted price. The Customer shall pay such invoice in accordance with condition [6.3]. A reconciliation and final invoice (where relevant) will be prepared by OC and the Customer shall pay such invoice in accordance with condition [6.3].
6.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. TESTING
7.1 All Testing carried out by OC is carried out in line with the Customer’s company drugs and alcohol policy. OC shall not bear any responsibility if the sampling plan and/or the range of analysis to be performed prove to be insufficient or inappropriate for any reason.
7.2 The Customer will ensure that OC has received a copy of the Customer’s drug and alcohol policy one week prior to the commencement of Testing.
7.3 If Testing is to be undertaken at a Customer facility or site, or a site chosen by OC, the Customer will make the employees selected for Testing available for Testing at the agreed dates and times.
7.4 If any of the selected Customer employees are unavailable for Testing for any reason, and/or any cancellation of any services is not in accordance with 13.1, OC reserves the right to charge full or part payment for the Service and or/ any associated costs incurred.
7.5 The Customer will ensure all staff are aware of the Customer’s drugs and alcohol policy and their obligations to be Tested. No person can be forced to provide a sample of urine, hair, saliva or blood for any purpose (notwithstanding any term of the Customer’s drugs and alcohol policy to the contrary). Should an employee of the Customer decline to take part in the Testing process, OC will randomly select another employee of the Customer and inform the Customer’s HR department of the failure to provide a sample.
7.6 Waiting Time
7.6.1 There will be a 30 minute ‘grace period’ that commences at the start of a test/sample collection appointment time.
7.6.2 If a test is delayed by the Customer and/or the Customer’s employee for more than 30 minutes, there will be a charge of £30 + VAT per half hour delay.
7.7 Out of Hours and Weekend testing
7.7.1OC testing locations operate between the hours of 9.00am to 5.30pm, Monday to Friday.
7.7.2For any pre-planned testing that is required outside of this time-frame, OC reserves the right to charge the Customer for any additional costs that are incurred for out-of-hours access.
7.8 OC only carries out Testing using Home Office-approved equipment. OC will provide equipment and consumable parts. This is to ensure calibration and shelf life are controlled.
7.9 If testing takes place at a Customer site, the Customer must ensure that a clean, quarantined, safe area is provided for OC to conduct Testing.
7.10 OC will provide all Testing results in digital format. Such results will be provided to the Customer’s HR Department/nominated representative only.
7.11 Notwithstanding that OC may have prepared such policy, OC will bear no responsibility for any dispute or claim against the Customer (whether from a Customer employee or otherwise) arising out of or in connection with the content, subject matter or formation of the Customer’s drugs and alcohol policy.
7.12 The Customer has the right to challenge any Testing results within thirty (30) days after receipt of the results. The Customer shall pay on written demand by OC all costs and expenses arising in connection with such re-tests unless the results show a disparity between the original and re-test results.
8. ACTIONS ON A NON-NEGATIVE (POSITIVE) SAMPLE
8.1 In the event of a Customer employee providing a Non-Negative Sample, and if the Customer’s drugs and alcohol policy defines a need for a confirmatory test of the sample, OC will request that one of the OC approved third-party UKAS approved laboratories carries out such confirmatory test of that sample.
8.2 The Customer shall pay on written demand by OC all costs and expenses incurred by OC in obtaining the confirmation test results referred to in clause [8.1] above.
9. TRANSFER OF PROPERTY
9.1 Title in any analysis results, products, equipment, software or similar supplied by OC to the Customer will remain with OC until all amounts due and payable under the Contract have been paid by the Customer in full, and until such full payment, the Customer shall have no property or other rights to use them.
9.2 Notwithstanding that all amounts due and payable under the Contract may have been paid in full, OC shall retain the right to store, use and publish all Testing results in an anonymous form which does not identify the Customer or any of its employees.
9.3 The Customer shall, subject to condition 0 have the option (the “Purchase Option“) exercisable by not less than twenty (20) Business Days’ written notice to OC, to purchase the Equipment on the last day of the Rental Period of the Purchase Option Price.
9.4 The Purchase Option may be exercised only if all amounts due to OC under the Contract up to the date of exercise of the Purchase Option have been paid in full by the Customer.
9.5 Upon completion of the purchase of the Equipment under condition 0, such title to the Equipment as OC has shall transfer to the Customer. The Equipment will transfer to the Customer in the condition and at the location in which it is found on the date of transfer.
10. LIMITED WARRANTIES AND RESPONSIBILITIES
10.1 Testing is handled and carried out in the conditions available to OC in accordance with the current state of technology and methods developed and generally applied by OC. Analyses, interpretations, assessments, consulting work and conclusions are prepared with a commercially reasonable degree of care and skill, but OC cannot guarantee that these will always be correct or absolute.
10.2 All OC equipment and consumables will be of original equipment manufacturer (OEM) origin and will be maintained in accordance with the calibration and servicing schedules as defined by the OEM.
10.3 The Customer may at all times be liable for the security of testing stock if a testing programme is to be conducted at a site or venue. Stock will be delivered prior to the commencement of testing. OC will use commercially reasonable care in handling and storing all testing and consumable stock but OC shall not be held responsible for any loss or destruction of stock in transit or upon receipt at a Customer site, venue or facility.
10.4 Unless explicitly agreed in writing by all parties, the contractual relationship shall be between exclusively the customer and OC. There shall be no third-party beneficiary or collateral warranty relating to any order and the customer shall indemnify and hold OC harmless from and against any and all third party claims in any way relating to the customer or to the order by the customer.
10.5 Where OC supplies any software to the Customer, the Customer shall use such software in accordance with the applicable licence terms, instructions and manuals.
11. LIMITATION OF LIABILITY
11.1 Except to the extent that such limitations are not permitted or void under applicable law and subject at all times to clause10.2:
11.1.1 OC (together with its workers, office clerks, employees, representatives, managers, officers, directors, agents and consultants and all OC partners and affiliates, the “OC Indemnifying Parties”) shall be liable only for the proven direct and immediate damage caused by the OC Indemnifying Party’s breach of its obligations under the Contract and then, only if OC has received written notice thereof not later than six (6) months after the date of the Customer’s knowledge of the relevant claim (unless any longer period is prescribed under applicable law and cannot be contractually limited); and
11.1.2 In all cases (whether arising under contract, tort, negligence, strict liability, through indemnification or otherwise), the OC Indemnifying Parties’ aggregate liability in respect of all or any claims arising out of or in connection with the Contract, and the Customer’s exclusive remedy, shall be limited to the lesser of:
(i) the direct and immediate loss or damage caused by the OC Indemnifying Party’s breach of its obligations under the Contract; and
(ii) ten times the amount OC actually received from the Customer in relation to an Order, up to fifty thousand pounds sterling (£50,000).
11.2 The OC Indemnifying Parties shall not be liable for any of the following: (i) loss of business profits; or (ii) loss of or damage to goodwill or other similar losses; or (iii) loss of business or sales opportunities; or (iv) loss of agreements or contracts; or (v) loss of use or corruption of software, data or information; or (v) loss of revenue; or (vi) loss of anticipated savings; or (vii) loss of or damage to data; or (viii) for any indirect or consequential losses, costs, charges, expenses or damages incurred by the Customer or by any third party. However, the OC Indemnifying Parties only exclude and limit their liability as permitted by applicable law. The OC Indemnifying Parties do not exclude or limit their liability for death or personal injury caused by their negligence, for their fraudulent misrepresentation.
11.3 The customer shall indemnify the OC Indemnifying Parties for any losses, injuries, claims and costs which an OC Indemnifying Party may suffer as a result of or arising from or in any way connected with the provision of the Services or products or software provided pursuant to these Terms and Conditions, except to the extent that OC Indemnifying Parties are required to bear such losses according to these Terms and Conditions.
12. FORCE MAJEURE
12.1 OC shall not be (or be deemed to be) liable for any default by reason of any delays, errors, damages, failure to perform or other problems caused by any events or circumstances which are unforeseen or beyond OC’s reasonable control, or which result from compliance with governmental requests, laws and regulations.
13. TERMINATION
13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party no less than two weeks written notice.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.2.1 the other party takes any step or action in connection with its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or ceasing to carry on business; or
13.2.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
13.3 Without affecting any other right or remedy available to it, OC may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount when due under the Contract on the due date for payment.
13.4 Without affecting any other right or remedy available to it, OC may suspend the supply of Services under the Contract if the Customer fails to pay any amount due under the Contract on the due date for payment or if the Customer becomes subject to any of the events listed in condition [13.2.1].
13.5 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
14. CONSEQUENCES OF TERMINATION
14.1 On termination of the Contract:
14.1.1 the Customer shall immediately pay to OC all of OC’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, OC shall submit an invoice which shall be payable by the Customer immediately on receipt;
14.1.2 the Customer shall return all of OC’s (or any third party engaged by OC’s) materials which have not been fully paid for. If the Customer fails to do so, then OC may enter the Customer’s premises and take possession of them.
14.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
14.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
15. CONFIDENTIALITY & PROCESSING OF CUSTOMER DATA
15.1 OC shall be entitled to save, and process personal or commercial data received from the Customer in any way, no matter whether such data stem from the Customer directly or from a third party and shall use commercially reasonable efforts to keep such data confidential, in compliance with applicable law.
15.2 OC shall use commercially reasonable efforts to keep all Testing results and service reports confidential, subject to OC’s rights set forth in clauses [6.8 and 9.2] and the right to use them in order to demonstrate its entitlement to payment for services rendered.
15.3 Analysis results are prepared and supplied exclusively for the use of the Customer and should not be divulged to a third party for any purposes without the prior written agreement of OC. In addition, the Customer is required to maintain secrecy concerning all services provided by OC and their results as well as the composition of products and software delivered by OC. Testing results are not to be publicly disclosed or exploited without the prior written consent of OC. Even if such written consent is given by OC, the Customer (a) remains responsible for any consequences due to the divulgence of such results to a third party and any reliance of such third party on such results and (b) hereby agrees to indemnify the OC Indemnified Parties against any liability which the OC Indemnified Parties may incur as a result of such divulgence or any such third party reliance.
16. DISCLAIMER AND MISCELLANEOUS
16.1 EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, ALL CONDITIONS, WARRANTIES AND OTHER TERMS (INCLUDING ANY IMPLIED WARRANTY AS TO MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) AS TO THE MANNER, QUALITY AND TIMING OF THE TESTING SERVICE AND RESULTS, EQUIPMENT, PRODUCTS OR SOFTWARE SUPPLIED BY OC ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF OC CONTAINED IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE.
16.2 These Terms and Conditions may be modified in writing from time to time by OC and Orders will be governed by the most recent version of these Terms and Conditions that is in effect at the time OC accepts the Purchase Order.
16.3 If any provision of part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this [clause/condition] shall not affect the validity and enforceability of the rest of the Contract.
16.4. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver or any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 The Customer shall not assign, transfer, mortgage, charge, subcontract or otherwise encumber or deal with all or any of its rights or obligations under the Contract [without the prior written consent of OC].
16.6 Unless expressly stated otherwise, a person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17. GOVERNING LAW/ JURISDICTION
17.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.