Terms & Conditions
Terms and Conditions
1. Defined Terms
1.1. Business Day – a day other than a Saturday, Sunday, or a public oliday, when banks in London are open for business.
1.2. Buyer – the person or entity buying the Goods from the Seller.
1.3. Contract – the agreement between the Buyer and the Seller consisting of these Terms and Conditions and any Order Form or Delivery Note.
1.4. Delivery Note – a note detailing the Goods delivered by the Seller to the Buyer, in the Seller’s accepted form, as amended from time to time, to which these Terms and Conditions are attached.
1.5. Force Majeure – events beyond the Parties reasonable control including but not limited to severe weather, rioting, acts of god, strikes, lock outs, accidents, war, fire, breakdown of machinery, shortage of materials, floods, terrorist attack, failure of suppliers, failures of the transport network, industrial disputes, malicious damage, loss in transit, failure of utility services including telecommunications.
1.6. Goods – the goods, products, or materials subject of the Contract, to be supplied to the Buyer by the Seller under the
Contract, including training.
1.7. Intellectual Property Rights – any information which has been designated as confidential by either Party, or that ought to be reasonably considered confidential, or any other material which is confidential or proprietary to the disclosing Party, including but not limited to know-how, personnel, suppliers, trade secrets, designs, specifications, models, source codes, documentation, marketing plans, business plans, financial information, customer lists, and promotional material.
1.8. Loan Machine – A good, product, or material of the same or similar description to a Good which is alleged to be faulty.
1.9. Order Form – a purchase form detailing the Buyer’s order of the Goods, in whatever form as accepted or amended by the Seller from time to time, to which these Terms and Conditions are attached.
1.10. Parties – parties to the Contract, namely the Buyer and the Seller.
1.11. Price – the monetary amount invoiced by the Seller to the Buyer, for the Goods ordered, to be paid by the Buyer to the Seller.
1.13. Technical Report Form – a questionnaire or any other form used by the Seller to gather information from the Buyer about a Good which is alleged to be faulty, in whatever form as accepted or amended by the Seller from time to time.
2.1. Any phrase introduced by the terms including, include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.2. A reference to writing or written includes communication via email.
3.1. This Contract is concluded upon either:
a) The issuance of the order confirmation in whatever form by the Seller.
b) The commencement of performance of the obligations by the Seller, including the delivery.
c) The acceptance of payment for the Goods, or any part thereof by the Seller. Whichever occurs first, at which point these Terms and Conditions are effectuated and applicable to the Parties.
3.2. The Parties agree that these Terms and Conditions shall apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
3.3. Each Party is independent of the other and nothing in these Terms and Conditions shall create or imply a relationship between the Parties which extends beyond the terms of this Contract. For the avoidance of doubt, neither Party shall have any right to act on behalf of the other nor to bind the other by agreement or otherwise.
3.4. Any samples, drawing, depictions, descriptive matter, or advertising produced or used by the Seller and any descriptions or illustrations contained in the Seller’s, or those used by the Seller, catalogues, brochures, or websites, or any other promotional material are produced for the purpose of giving an approximate idea of the Goods. They shall not form part of the Contract nor have any contractual force.
4.1. The Goods are subject to availability. The Seller shall not be liable if the Goods become unavailable for whatever reason.
4.2. The Goods shall be identified in an Order Form or a Delivery Note wherever appropriate, unless the Parties agree otherwise in writing.
5.1. The Seller will use reasonable endeavours to ensure that the Goods are of satisfactory quality, reasonably fit for their purpose, free from defects in design, material and workmanship.
5.2. The Buyer shall intimate to the Seller the intended purpose for the Goods in writing where such purpose falls outside the accepted product or industry application.
5.3. The Buyer shall have no remedy if the goods are unfit for a specific purpose which was not intimated to the Seller.
5.4. The Buyer shall maintain the Goods in a good state of repair, in decent orderly and sanitary condition, and in compliance with the relevant health and safety regulations.
5.5. The Seller may terminate the contract with a 7-day written notice, where the Buyer contravenes clause 5.4.
6.1. The Seller will use reasonable endeavours to deliver the Goods to the Buyer within a reasonable time.
6.2. The Seller will use reasonable endeavours to attach a Delivery Note to the Goods being delivered.
6.3. The Seller may deliver the Goods in instalments.
6.4. The date of the delivery provided by the Seller is an estimate only. The time for delivery shall not be of the essence in this Contract.
6.5. The Seller shall not be liable for any loss, costs, damages, charges, or expenses however caused by any delay in the delivery of the Goods.
6.6. If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality at the best price possible.
6.7. No liability shall attach to the Seller for any failure to deliver the Goods arising out of a Force Majeure, or the Buyer’s failure to provide the Seller with adequate delivery instructions, or other instructions relevant to the delivery of Goods.
6.8. Delivery shall be deemed completed upon the Seller’s tender of the Goods to a carrier.
7. Non-conformity and Unfitness for Purpose
7.1. The Buyer shall give reasonable notice in accordance with clause 22 to the Seller where any Goods are unfit for their purpose, or suffer from any defects.
7.2. The Buyer shall promptly provide any information relevant to the alleged defect, and shall promptly comply with the Seller’s requests for specific information including but not limited to photographs, product readings, screenshots, or the Technical Report Form.
7.3. No liability shall attach to the Seller, where the Buyer continues to use the Goods after the intimation of the defect to the Seller in accordance with clause 22, or 14 days after the discovery of the defect, whichever occurs first.
8. Payment and Price
8.1. The Goods shall be invoiced and paid for in full either on or prior to delivery, unless the Parties agree otherwise in writing.
8.2. All Prices are fixed for a period of 30 days from the conclusion of the Contract.
8.3. In the event of late payment by the Buyer, the Seller may suspend delivery, and accounts 30 days or more past due shall accrue interest at the rate 3% per calendar month above the London Inter Bank Offer Rate.
8.4. All deposits made by the Buyer to the Seller are non-refundable.
9. Title and Risk
9.1. Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the goods.
9.2. Risk passes to the Buyer upon Delivery.
10.1. The Seller shall provide full warranty for a period of 12 months, unless specified otherwise in writing, from the conclusion of the Contract, against any defect which may arise because of a faulty design, workmanship, material or performance.
10.2. Such defective parts or Goods, shall be replaced with the warranty period carrying over to the replacement part or Good.
10.3. The Seller shall repair or replace the Goods at its own discretion. Such repair and replacement representing the sole obligation and remedy of the Parties.
10.4. The Seller shall use reasonable endeavours to repair or replace a Good or any part thereof within 7-14 Business Days.
10.5. The Buyer agrees to inform the Seller of any alleged faults, or defects within 14 days from discovery. Such intimation shall be a precondition to any repair or replacement by the Seller.
10.6. This warranty shall be void if:
a) Anyone other than the Seller or its authorised agents attempts to modify, repair, or carry out any unauthorised work on the good or any part thereof.
b) The Goods are not maintained, or operated in accordance with the Seller’s instructions or training.
c) The Goods have been misused by including but not limited to being used or stored in abnormal conditions, negligently handled or operated.
d) The defect arose due to fair wear and tear, wilful damage, or negligence.
e) The Goods have been resold by the Buyer.
10.7. The Seller retains sole discretion to determine what constitutes unauthorised work, modification, repair, abnormal conditions, negligent handling or operation.
10.8. The Buyer agrees that representations not expressly made by the Seller or its authorised agents, including but not limited to those on the Seller’s website or promotional material, are illustrative and not material to the Contract. Such representations will not offer a remedy.
11. Loan Machines
11.1. A Loan Machine may be provided at the Seller’s discretion for the duration of the repair of the faulty Good, unless otherwise agreed in writing.
11.2. Where provided, the title in the Loan Machine shall never pass to the Buyer.
11.3. Where provided, the risk in the Loan Machine shall pass to the Buyer upon Delivery.
11.4. The Buyer shall make the Loan Machine available for return to the Seller, upon the return of the original Good.
11.5. Where the Buyer refuses to return the Loan Machine to the Seller within 14 days of receiving written notice, the Buyer shall be liable for the market price of the Loan Machine payable immediately.
12.1. No representation or warranty will be implied from any description of, or claims regarding, the Goods or their effectiveness or ability to achieve any particular clinical results, whether written or oral, contained in any promotional materials or statements to the same effect made to the Buyer by any person.
12.2. The Parties acknowledge that the use of the Goods require the exercise of sound medical judgement and skills. The Parties further acknowledge that clinical results may vary according to the operator skill and experience, patient suitability, patient response to treatment, and other factors beyond the control of the Parties.
12.3. The Seller makes no representation or warranty of revenue, or profits, from the use of the Goods. The Buyer acknowledges that revenue and profits will be determined by factors beyond the Seller’s control including but not limited to the Buyer’s marketing costs, operating costs, and pricing. The Parties agree that no such representation or warranty may be implied from the use of projections, studies, illustrations or promotional material, marketing material, or any other material or statements made to the Buyer.
12.4. The Seller disclaims any other warranties concerning the Goods whether express or implied to the fullest extent permitted by law.
13.1. The Contract price for the goods does not include the cost of training, unless specified otherwise on the Order Form, or the Delivery Note, or in writing, as appropriate. The Buyer will be charged for training as appropriate, according to the agreement between the Parties.
13.2. The Seller will provide the Buyer, at its own discretion, relevant training.
13.3. The Buyer shall operate in conformity with the training received, and any operating manuals, or instructions received from the Seller.
13.4. The Parties agree that no liability shall attach to the Seller where the Buyer operates in contravention of the training, or instructions received.
13.5. Liability stemming from or in connection with the use of the Goods lies only with the Buyer.
13.6. The Seller recommends that the Buyer allows appropriate adjustment time for the staff to operate or use the Goods appropriately accordingly with any training or instructions received.
14.1. The Buyer agrees that it shall have the sole obligation to ensure that it, its staff or any of its authorised agents are trained and qualified to use the Goods.
14.2. The Buyer agrees that it shall have the sole obligation to ensure that it, its practices, its staff or any of its agents comply with all the relevant regulations and legislation.
14.3. No liability shall attach to the Seller arising out of the Buyer’s breach of this clause, including but not limited to the lack of compliance with relevant regulations and legislation, not ensuring its staff or any of its agents are trained and qualified as appropriate.
15. Accuracy of the Information
15.1. The Seller will use reasonable endeavours to maintain its promotional material, including its website, current and accurate to the best of its knowledge, including but not limited to the correcting of any textual, graphical or factual errors.
15.2. The Seller makes no representation as to the accuracy, reliability, completeness and currentness of its promotional material, including its website.
15.3. The Parties agree that no warranty or material representation may arise out of, or in connection with, the content of the Seller’s promotional material, including its website.
16. Limitation of Liability
16.1. In no event shall the Seller be liable to the Buyer for any loss of business, loss of opportunity, loss of profits, or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable, or the Seller had been made aware of the possibility of the Buyer incurring such a loss.
16.2. Nothing in this Contract shall limit the liability for:
a) death or personal injury due to Seller’s negligence
b) fraud or fraudulent misrepresentation
c) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
16.3. In any other event, the Seller’s total liability to the Buyer in respect of all losses arising under, or in connection with, this Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price of the Goods.
17. Intellectual Property Rights
17.1. The Parties shall not reproduce, copy, or disseminate any proprietary information belonging to the other Party, without written consent of that Party.
17.2. The Buyer shall provide the end users with information in accordance with the information received from the Seller. In addition, the Buyer shall not misrepresent the attributes, or characteristics of the Goods and shall caution end users that without proper application and use, the integrity of the products may be compromised.
17.3. The Buyer shall not conduct, or carry on, any advertising which is materially different from the information supplied by the Seller.
17.4. The Parties agree to exchange information which may assist either Party in effectuating sales, or other business dealings.
17.5. The Buyer shall inform the Seller of any unresolved customer, or controlling authority complaint, or any adverse publicity.
17.6. The Parties shall not disclose Intellectual Property Rights, or any other confidential information to any other person or entity within the industry, for a period of 5 years from the conclusion of the
a) Such information becomes part of the public domain other than by a breach.
b) Such information is independently developed [and made public] by another person or entity.
18.1. The Buyer shall have public liability insurance cover for at least 1 million Pounds Sterling.
18.2 The Seller shall not be liable to refund the Buyer in the event that the Buyer is unable to obtain the correct insurance.
19.1. The Buyer shall not be entitled to assign any right or obligation stemming from this Contract, unless expressly authorised in writing by the Seller. The consent may be withheld at the Seller’s sole discretion.
20.1. Failure to insist upon the strict performance of any provision, term or condition of these Terms and Conditions, or to exercise any remedy arising out of a breach, by either Party shall not constitute a waiver of any such breach or any subsequent breach of such provision, term, or condition.
20.2. No waiver shall be effective unless it is expressly stated to be a waiver and communicated to the other Party in writing.
20.3. A waiver of any right or remedy arising from a breach of Contract shall not constitute a waiver of any right or remedy arising out of any other or subsequent breach of the Contract.
21.1. Each provision shall be construed as separable and surviving on its own, where one or other provisions become invalid, illegal, or unenforceable.
21.2. If any provision or its part 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.
21.3. If such modification is not possible, the relevant provision or its part shall be deemed severable from the other provisions in the Contract. Its modification or deletion shall not affect the validity and enforceability of the rest of the Contract.
21.4. In the event that such invalidity prevents the accomplishment of the purpose of the Contract, the Parties shall begin negotiations to remedy such invalidity.
22.1. Any notice or other communication to either Party under or in connection with this Contract shall be in writing, addressed to that party at its registered office, or principal place of business, or such other address as that Party had specified in writing. It shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier, or email.
22.2. A notice or other communication shall be deemed to have been received:
a) If delivered personally, when left at the relevant address.
b)If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
c) If delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
d) If sent by email, one Business Day after transmission.
22.3. This clause shall not apply to the service of any proceedings or other documents in any legal action.
23.1. Either Party may terminate this Contract by giving 1 weeks’ written notice to the other, if:
a) The other Party commits a material breach capable of being remedied, but fails to remedy it within 30 calendar days of being given notice [from the other Party] to do so;
b) The other Party commits a material breach incapable of being remedied;
c) The other Party passes a resolution for winding up, or is subject of a competent court order to that effect;
d) The other Party ceases to carry on its business;
e) The other Party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement with its creditors; or a liquidator, receiver, trustee, or similar officer is appointed over any of its assets.
24. Force Majeure
24.1. Neither Party shall be in breach of this Contract or any of its obligations under this Contract, if the breach is a result of a Force Majeure.
24.2. If non-performance or delay continues for 4 weeks the other Party may terminate this Contract by giving 1 weeks’ written notice.
25. Entire Agreement
25.1. This Contract constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
25.2. Any changes to this Contract must be made in writing signed by both Parties.
25.3. The Parties agree that neither shall have any remedy in respect of any statement, representation, assurance, or warranty, whether made innocently or negligently, that is not set out in this Contract.
25.4. The Parties agree that neither shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any representation, or statement in this agreement.
26. Governing Law and Jurisdiction
26.1. This Contract is governed by and shall be construed in accordance with the provisions of the Laws of Scotland, including the provisions on the Conflict of Laws.
26.2. The Parties shall submit to the exclusive jurisdiction of the Courts of Scotland in respect of any dispute arising out of or in connection with this Contract.