Terms and Conditions of Supply for Products Supplied for Commercial Purposes 

               Background 

• a) The Supplier carries on the business of manufacturing and selling the Products. 
• b) The Customer has previously purchased a sample of the Products from the Supplier for demonstration or trial purposes. The Customer wishes to purchase a larger quantity of the Products for commercial purposes subject to these Conditions. 
• 1. Interpretation
  • 1.1 Definitions: 

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

Contract: the contract between the Supplier and the Customer for the supply of the Products in accordance with these Conditions and the relevant Order. 

Customer: the person, firm or company who receives the Products from the Supplier.

Delivery: has the meaning given in clause 4.3. 

Delivery Location: means the delivery location specified in the Order.

Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.

Intellectual Property Rights: patents, utility models, know-how, rights to inventions, copyright and neighbouring and related rights, moral rights, trademark and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Offer: means the Customer’s request to purchase the Products as described in clause 2.3.

Order: means as defined in clause 2.4. 

Products: means either: 

• a) single layer inks or multiple layer inks developed by the Supplier; or 
• b) inks applied to a substrate and processed by the Supplier to form a backplane or other electronic circuit. 

Supplier: SmartKem Limited registered in England and Wales with company number 06652152 and registered office at Manchester Technology Centre, Hexagon Tower, Delaunays Road, Blackley, Manchester, England, M9 8GQ.

• 1.2 Interpretation: 
  • 1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  • 1.2.2 A reference to a party includes its successors and permitted assigns.
  • 1.2.3 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.
  • 1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • 1.2.5 A reference to writing or written includes email.
• 2. Basis of contract
  • 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 law, trade custom, practice or course of dealing.
  • 2.2 The Supplier shall issue a quotation to the Customer will shall set out the price of the Products and volume of Products requested by the Customer. Any quotation issued by the Supplier shall not constitute an offer for sale. The quotation shall be valid for the time period specified on the quotation. 
  • 2.3 All requests to purchase the Products on the terms of the quotation shall be deemed to be an offer by the Customer (Offer). The Supplier may accept or reject any Offer at its absolute discretion. The Customer is responsible for ensuring that the Offer is complete and accurate.
  • 2.4 An Offer shall only be deemed to be accepted when the Supplier issues a written acceptance of the Offer. Following acceptance of the Offer (including any amendments, additions or deletions made by way of the Supplier’s acceptance), it shall become an Order and the Contract shall come into existence.
  • 2.5 Nothing in this Contract may be interpreted or construed as an offer or acceptance to sell or purchase the Products.
• 3. The Products
  • 3.1 The Customer acknowledges that it is the Customer’s responsibility to independently determine the suitability of the Products for incorporation into the end-product, including the Customer’s use thereof, and to test and verify the same where the Customer’s manufacturing processes mix or use the Products in conjunction with others. 
  • 3.2 The Customer shall not (nor shall they permit any third party to)  reverse engineer, disassemble, analyse or decompile the Product, unless otherwise authorised to do so in writing by the Supplier. 
  • 3.3 The Supplier warrants that on delivery the Products shall:
    • 3.3.1 be free from material defects in design, material and workmanship; 
    • 3.3.2
    • 3.3.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); 
    • 3.3.4 comply in all material respects with any written description of the Products provided by the Supplier to the Customer (if applicable). For the avoidance of doubt, if no written description of the Products was supplied by the Supplier to the Customer this clause 3.3.4 shall not apply; and 
    • 3.3.5 be of the same quality as the sample of the Products previously purchased by the Customer (if applicable). For the avoidance of doubt, if the Customer has not previously purchased a sample of the Products from the Supplier, this clause 3.3.3 shall not apply and the Order shall not be a sale by sample for the purpose of s15 of the Sale of Goods Act 1979. 
  • 3.4 Subject to clause 3.5, if
    • 3.4.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Products do not comply with the warranty in clause 3.3; and
    • 3.4.2 the Customer providers to the Supplier such written, photographic or video evidence of the defect in the Products as the Supplier may request;

the Supplier shall, at its option replace the defective Products or refund the price of the defective Products in full. The remedies in this clause 3.4 shall be the Customer’s sole remedy for breach of the warranty in clause 3.3. 

• 3.5 The Supplier shall not be liable for the Products failure to comply with the warranty set out in clause 3.3 if:
  • 3.5.1 the Customer makes any further use of such Products;
  • 3.5.2 the Customer alters, repairs or modifies such Products; 
  • 3.5.3 the defect arises due to the Customer’s actions in mixing or using the Products with other products or incorporating the Products into the end-product; 
  • 3.5.4 the defect arises because the Customer fails to follow any oral or written instructions issued by the Supplier as to storage, use and maintenance of the Products, or (if there are none) good trade practice regarding the same; or 
  • 3.5.5 if the Supplier makes any changes to the Products to ensure they comply with applicable regulatory or statutory requirements. 
• 4. Delivery of the Products
  • 4.1 The Supplier shall ensure that delivery of the Products is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers and the number of units of the Products.
  • 4.2 The Products shall be delivered to the Delivery Location DAP per Incoterms 2020 (or such other Incoterm as is set out in the Order). 
  • 4.3 Delivery is completed once the Supplier has satisfied all of its obligations relating to delivery as determined by the applicable Incoterm (Delivery).
  • 4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
• 5.0 Title and Risk
  • 5.1 The risk in the Products shall pass to the Customer on completion of Delivery. Title to the Products shall not pass to the Customer until:
    • 5.1.1 where payment is due in accordance with clause 6.4, the Supplier receives payment in full and cleared funds for the Products in this Order and any other Order that the Supplier has Supplied to the Customer; or 
    • 5.1.2 where payment is due in accordance with clause 6.5, upon completion of Delivery. 
• 6. Price and Payment 
  • 6.1 The price of the Products shall be the price set out in the Order. 
  • 6.2 The price shall be payable by the Customer in the currency set out in the Order. If no currency is specified in the Order the price shall be payable in pound sterling. 
  • 6.3 The price of the Products excludes amounts in respect of value added tax (VAT) or such other equivalent sales tax, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT, or equivalent tax, invoice. 
  • 6.4 Subject to clause 6.5, the Supplier may invoice the Customer for the Products on or at any time after Delivery. 
  • 6.5 The Supplier reserves the right to request that the Customer pays for the Products in advance of the Products being dispatched. Where this is the case the Supplier shall not be under any obligation to dispatch the Products if payment has not been received in full and cleared funds. 
  • 6.6 The Customer shall pay each invoice submitted by the Supplier within 30 days of Delivery in full and cleared funds to the bank account nominated in writing by the Supplier. 
  • 6.7 The Customer shall make all payments due under these Conditions without withholding or deduction of, or in respect of any tax required by law. If any such withholding or deduction is required the Customer shall pay to the Supplier such additional amount as will ensure that the Supplier receives the same total amount that it would have received if no such withholding or deduction had been required. 
• 7. Intellectual Property Rights
  • 7.1 Nothing in the Contract shall operate to expressly or impliedly grant to the Customer any licence other right to use the Intellectual Property Rights of the Supplier in the Products or otherwise.
• 8. Limitation of liability
  • 8.1 All liability is excluded to the fullest extent permitted by applicable law, including but not limited to the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 which are, to the fullest extent permitted by law, excluded from the Contract. 
  • 8.2 The Supplier shall not be liable for any claim, loss, damage or injury or otherwise which is caused by the Customer’s use of the Products or the performance of the Products in any end-product into which it is incorporated. 
  • 8.3 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
  • 8.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
    • 8.4.1 death or personal injury caused by negligence;
    • 8.4.2 fraud or fraudulent misrepresentation;
    • 8.4.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
    • 8.4.4 defective products under the Consumer Protection Act 1987.
  • 8.5 Subject to clause 8.4, the Supplier’s total liability to the Customer shall not exceed:
    • 8.5.1 in relation to any breach or claim relating to an Order, the price paid for the Order; or
    • 8.5.2 in relation to any other breach of claim, the sums received by the Supplier from the Customer in the twelve months before the liability arose. 
  • 8.6 Subject to clause 8.4, the following types of loss are wholly excluded:
    • 8.6.1 loss of profits;
    • 8.6.2 loss of sales or business;
    • 8.6.3 loss of agreements or contracts;
    • 8.6.4 loss of anticipated savings;
    • 8.6.5 loss of use or corruption of software, data or information;
    • 8.6.6 loss of or damage to goodwill; and
    • 8.6.7 indirect or consequential loss.
  • 8.7 This clause 8 shall survive expiry or termination of the Contract.
• 9. Expiry or Termination of the Contract 
  • 9.1 Each party’s obligations under the Contract shall continue until the Products have been delivered. 
  • 9.2 Expiry of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of expiry.
  • 9.3 Without limiting the other rights or remedies available to it, either party may terminate the Contract, or any Order, with immediate effect by giving written notice to the Customer as follows:
    • 9.3.1 the Supplier may terminate the Contract or any Order if the Customer fails to pay any amount due under the Contract on the due date for payment and fails to remedy such  failure within 30 days of being notified in writing to do so; 
    • 9.3.2 either party may terminate the Contract if:
      • 9.3.2.1 the other commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within 30 days of being notified in writing to do so; or 
      • 9.3.2.2 an order is made or a resolution is passed for the winding-up of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up order or the other party takes or suffers any similar or analogous action in consequence of debt.

• 9.4 Without limiting its other rights or remedies, the Supplier may suspend delivery of any Order if the Customer:
  • 9.4.1 becomes subject to any event set out in clause 9.3.2.2; or 
  • 9.4.2 fails to pay any amount due in respect of this Order, or any other Order, on the due date for payment. 
• 9.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
• 10. Force majeure
  • 10.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
  • 10.2 For the avoidance of doubt, the occurrence of a Force Majeure Event shall not affect the Customer’s obligation to pay any sum due from the Customer to the Supplier under these Conditions. 
• 11. General
  • 11.1 Assignment and other dealings.
    • 11.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
    • 11.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
  • 11.2 Confidentiality.
    • 11.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.2.
    • 11.2.2 Each party may disclose the other party’s confidential information:
      • 11.2.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
      • 11.2.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    • 11.2.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
  • 11.3 Entire agreement.
    • 11.3.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • 11.3.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  • 11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  • 11.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
  • 11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  • 11.7 Conflict. Unless otherwise set out in these Conditions, in the event of any conflict between a clause in these Conditions and a term of the Order, these Conditions shall prevail.
  • 11.8 Third party rights.
    • 11.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    • 11.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
  • 11.9 Governing law. 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.
  • 11.10 Jurisdiction. 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 this Contract or its subject matter or formation.