Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
Release version 5.3 dated 11/05/2017
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The following terms and conditions will apply to the sale by PolyPhotonix Medical Ltd, (“PPXM’’) to the buyer ("Buyer"), of any products and/or services (the "Product(s)"), unless modified by a separate written agreement between PPXM and Buyer. PPXM expressly conditions its sale of the Products on Buyer’s assent to these terms notwithstanding any differences, additions or conflicting terms contained in any purchase order or other terms proposed by Buyer. The Buyer may not sell, distribute, convey, barter or otherwise transfer the Products purchased from PPXM except to individual persons in the course of providing health care services in accordance with protocols defined by PPXM, and industry best practice, without the express written agreement of PPXM.
Nothing in these Terms and Conditions shall affect the Buyers statutory (legal) rights. Please note that these Terms and Conditions will be revised from time to time to reflect legislative change and business requirements. Please read these Terms and Conditions carefully and fully. If you are unable to read the terms and conditions, our sales representatives will be happy to read them through for you. If you do not understand any terms or conditions please ask our sales representative to explain them to you or seek independent consultation or advice from the applicable TSI (Trading Standards Institute).
PRICES: The price of Products shall be that which is communicated to the Buyer at the point of order and will be shown on Company receipts and correspondence. Prices do not include, and Buyer will pay or reimburse PPXM for, any and all taxes and delivery charges that are payable as a result of this transaction. Buyer shall be responsible for maintaining tax exemption certificates where applicable, and shall forward copies to PPXM upon request.
SHIPMENTS, DELIVERY AND INSPECTION: Unless agreed otherwise in writing between PPXM and Buyer, the Products shall be shipped according to ex-works terms. Delivery shall occur and title and risk of loss shall pass to Buyer upon PPXM or PPXM’s agent dispatch of the Products with carrier for shipment to Buyer.
PPXM shall use its reasonable commercial efforts to deliver or make available the Products to the Buyer’s point of delivery by the date set out in Buyer’s purchase order, or according to PPXM’s standard delivery lead times, but time for delivery shall not be of the essence.
No nonconformity or defect in any supplied product according to the manufacturing standards and specifications of PPXM will constitute a breach of Buyer's purchase order, and upon agreement by PPXM shall be replaced, and supplied product whose conformity and condition Buyer does not dispute will be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments or undelivered Products.
Buyer will promptly inspect all Products supplied to it. Any claim against PPXM under the Warranty in section below or otherwise for shortages or for damages to or defects in the supplied Products that are observable in a reasonable visual inspection will be deemed waived unless the claim is made to PPXM within 30 days after such supply. Buyer shall request any proof of supply within 7 days of invoice.
WARRANTY, INSPECTION AND CLAIMS: PPXM warrants exclusively to Buyer that each Product sold hereunder will be free from defects in material and workmanship under normal use, if used in accordance with its specification and labelling for the period specified in the instruction for use (‘’IFU’’), or other documents accompanying the Product. PPXM will have the right at its expense to inspect and have returned any Product claimed by Buyer to violate this "Warranty". PPXM’s sole obligation and Buyer's exclusive remedy for any breach of the Warranty will be the repair or replacement, at PPXM’s option, of the defective Product.
Any replacement or repaired Product will be covered by the Warranty only for the remainder of the original warranty period. If PPXM determines that such repair or replacement is not economical or feasible or such remedy fails of its essential purpose, Buyer's exclusive alternate remedy and PPXM’s sole obligation for any such breach will be the return to Buyer of the purchase price paid to PPXM for the Product, in which case PPXM may repossess the Product. The Warranty will apply only if: (i) the delivered Product is not altered or damaged and is properly used, stored, handled, maintained and used in accordance with the Product's normal usage and any PPXM published instructions; and (ii) Buyer notifies PPXM of the defect in writing not more than 120 days after its delivery to Buyer and not more than 10 days after Buyer first learns of the defect.
Except for this express warranty and PPXM’s statutory warranty of good title, PPXM makes no warranties, either express or implied, regarding the products covered hereby including (without limitation) any implied warranties of merchantability, fitness for a particular purpose or non-infringement. No employee, agent, or representative of PPXM is authorised to make any representation or warranty on behalf of PPXM except to the extent specifically stated herein.
No warranties extend to any products not purchased directly from PPXM or from an authorised PPXM distributor. PPXM warranties extend only to the original purchaser of the products.
ORDERING: All orders for Products shall be deemed to be an offer by the Buyer to purchase Products pursuant to these Terms and Conditions. The Buyer can place orders for Products up to the value of their pre-arranged credit limit. On placing the order the Buyer is committing to pay for said Products. Payment must be made within 30 days of receipt of said Products unless other terms are agreed in writing between the parties.
The following information must be included in every supplier agreement and/or purchase order:
• Customer/Buyer name
• Bill to address
• Complete delivery address
• Purchase order number or Product Reorder number or purchase order reference
• Date by which the product is required
• Shipping preference
• Item, quantity and PPXM agreed unit price
• Total price per line
• Contact name, phone number, fax number or email address
Orders may be placed either directly using PPX Works ordering system, or by telephone or email. An order is only deemed accepted upon acknowledgment by PPXM.
NOCTURA 400 ORDERING ONLY: Unless otherwise agreed, Noctura 400 will be supplied un-programmed at the point of distribution to the Buyer and will require programming by the Buyer prior to forward supply and patient use.
PAYMENTS: If the full payment of the purchase price is not received when due as specified by PPXM or, if not so specified, within 30 days after the shipment date, PPXM reserves the right to charge interest on any unpaid balance at a rate of up to 3% per month (or the highest rate permitted by applicable laws, if lower) from the due date. Buyer also agrees to pay all collection costs, expenses and reasonable legal fees for collection of any amount due and unpaid. PPXM may suspend or cancel deliveries of ordered Products if Buyer fails to pay when due any amount owed by it to PPXM for any goods or services. PPXM also reserves the right to require from Buyer, at any time, satisfactory assurance of performance of Buyer's payment obligations to PPXM, and refusal or failure promptly to furnish such assurance will entitle PPXM to suspend or cancel further deliveries to Buyer.
CANCELLATIONS AND RETURNS: Any order by Buyer may only be cancelled or changed only with the consent of PPXM. Amendments to or cancellations to an order will only be possible if a request for such an amendment from the Buyer is received by PPXM within one week of the order being placed or up to three days prior to the latest agreed product dispatch date, whichever comes first.
Prior consent from PPXM is required before a return will be accepted. If a Product is returned with such consent, it shall thereupon become the property of PPXM. All products must be returned in saleable condition within 30 days of receipt. PPXM will accept Products for return only if they; are not damaged or used; not custom manufactured for the Buyer; not expired; in their original packaging, unopened; in full case quantities; originally purchased from PPXM; and are otherwise capable of being resold by PPXM. All returns must be accompanied by a valid Return Authorisation Number received from PPXM’s returns department.
When Products are authorised to be returned for any reason other than for breach of warranty, the amount of credit will be subject to a minimum restocking charge of 95%. Returned Product must be sent freight prepaid to the appropriate address indicated by PPXM’s returns department. PPXM accepts no responsibility for Product returned without prior authorisation. Any unauthorised returned Product will be returned to Buyer at Buyer’s expense.
LIMITS ON LIABILITY: In no event, whether based on breach of warranty or contract, negligence, strict liability in tort or any other legal theory, will PPXM be liable for any incidental, special or consequential damages or cost of "cover" arising out of the selection, ordering, purchase, use, resale or distribution of the products covered hereby, or otherwise, even if PPXM has been advised of the possibility of such damages. In particular PPXM will not be liable for loss of profits, savings or revenue; damage to reputation; loss of use of a product or any associated equipment or software; cost of capital; cost of any substitute goods, equipment, facilities or services; downtime; and the claims of third parties including buyer's customers. Where agreed, the maximum level of liability shall be strictly in line with PPXM’s associated insurance policies and related terms and conditions of such insurance cover.
FORCE MAJEURE AND SHORTAGES: PPXM will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under this agreement due to causes beyond its control, and no such event will relieve Buyer of its obligations to make payments for other deliveries under this agreement. PPXM reserves the right, in its sole judgment and without liability to Buyer, reasonably to allocate its available production capacity and Product inventories as may be necessary or equitable in the event of any shortages of production capacity or Products at any time.
QUALIFICATION AND CAPABILITY: Buyer will maintain all licenses and consents required for the purchase and compliant supply of PPXM products, and upon reasonable notice Buyer shall furnish copies of such licenses, or compliant supply to PPXM. PPXM reserves the right without notice to audit the Buyers supply records in accordance with any defined supply rules, regulations, or protocols.
COMPLIANCE WITH LAWS AND REGULATIONS: Buyer will comply with all applicable laws, regulations, trading standards, and ordinances applicable to its business and activities and will indemnify PPXM for any and all claims, damages, penalties, assessments and liabilities imposed on PPXM relating to or resulting from Buyer’s failure to comply with such applicable laws, regulations, trading standards, and ordinances.
ASSIGNMENT: Any assignment of Buyer's rights or obligations hereunder will be void without PPXM’s prior written consent.
MODIFICATION: These terms and conditions may be amended or terminated at any time by PPXM. Further, PPXM reserves the right to modify or discontinue any of its products at any time.
THIRD PARTY BENEFICIARIES: Nothing in these terms and conditions is intended to benefit any person other than the Buyer and PPXM.
CODE OF CORPORATE RESPONSIBILITY: PPXM is committed to conducting its business ethically and lawfully. To that end PPXM, through its ultimate parent company, PolyPhotonix Ltd, maintains a Code of Corporate Responsibility and Business Ethics and mechanisms for reporting unethical or unlawful conduct. PPXM expects that Buyer also will conduct its business ethically and lawfully. If Buyer has cause to believe that PPXM or any employee or agent of PPXM has behaved unethically or unlawfully under, or in connection with these terms and conditions Buyer is encouraged to report such behaviour to PPXM or to PolyPhotonix Ltd.
BRAND USE AND REPRESENTATION: PPXM exclusively owns and manages its product branding. Buyer shall respect PPXM’s brands, defined values, and instructed brand guidelines at all times. The Buyer will not undertake any marketing activities relating to or involving any of PPXM’s Products or Brand with our PPXM’s prior written consent. Failure to comply will result in suspension of sales and supply to the Buyer, and a claim for any resulting damages by PPXM to the buyer.
ADVERSE EVENT REPORTING: It is PPXM policy to comply with all regulations and laws worldwide relating to Adverse Event and Other Safety Findings. All PPXM clinical supply partners and customers are responsible for reporting any Noctura 400 sleep mask Serious Adverse Event immediately but not later than two calendar days from learning of the event. Other Adverse Events must be reported as soon as possible but not later than 30 calendar days. Information should be reported in the format and to the person stated in the procedure “Customers - SAE & AE Reporting Procedure”.
SEVERENCE: If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, then such provision or term shall be removed and the remainder of these Terms and Conditions shall continue in full force and effect.
GOVERNING LAW AND JURISDICTION: This agreement, and any claims or disputes related to this agreement, will be governed by and construed in accordance with the law of England and the parties hereby submit to the non-exclusive jurisdiction of the English courts.
