The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
No variation of these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the application or use of the Goods is followed or acted upon entirely at the Buyer’s own risk. Accordingly, the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2. Orders & Specifications
The Seller exclusively deals with medical practitioners and will not under any circumstances take orders or any instructions directly from patients.
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
The Seller will manufacture or supply what the practitioner orders. If the practitioner has ordered an inappropriate device the company will accept no liability for the device.
The quantity, quality and description of the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
If an inappropriate order is placed and requires replacing, remaking or altering in any way from the nature of the original prescription, standard charges will be applied to the Buyer.
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), cost (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
Any devices sent back by the Buyer for alteration, adjustment or refurbishment must be in a reasonably hygienic and repairable state.
If the Buyer returns custom devices for review, adjustment or alteration the Seller is not responsible for lost packages in transit. The Seller advises the Buyer to use the Seller’s collection service or another reputable delivery company that will provide a tracking number and insure the package.
The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
The price of the goods will be dependent upon the type of account which the Buyer has with the Seller. Additional charges are applicable for all Goods purchased under the Patient Pay Direct Account. Purchases made on a Patient Pay Direct Account incur a payment handling levy of €7.50 for devices or €10.00 for footwear (plus VAT if applicable) and a €5.50 charge for delivery.
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4. Payment Terms
Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within30 days of the last date of the month the invoice was issued, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
If the Buyer fails to make any payment on the due date then, interest shall accrue after 60 days and be payable on the amount unpaid (both before and after any judgement) at the rate of 5% per cent per annum, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
If the Buyer fails to make any payment on the due date then, the Seller shall be entitled to: -cancel the contract or suspend any further deliveries to the Buyer; and appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).
The Seller is committed to working with Private Clinic Account holders where accounts fall into disorder due to late payment, as they understand from experience that most businesses at times experience cash flow issues. Normally, a repayment plan agreement can be agreed that will be practicable for both the Buyer and the Seller. However, accounts will be placed on Stopped Goods if the agreement is breached or the Buyer does not respond to the Seller’s communications.
Buyers who are continually in breach of the Seller’s credit terms and repayment agreements will have their accounts suspended and changed to Proforma Accounts where payment will be expected in full before any goods are dispatched. To cover the additional administration costs of processing payments as orders are dispatched, rather than one monthly payment, all Proforma accounts will also be Invoiced using the Patient Pay Direct Price List.
In the event of a breached repayment agreement, where we believe the Buyer does not have an intention to settle the account within a reasonable timeframe, the Seller will employ the services of external debt collection agencies.
5. Delivery of Goods
Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods, however tracking is available on all deliveries through the Buyer’s courier service. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
In the event that the Seller is alerted that there is an issue with a delivery, the Seller will contact the courier for an update, and ensure that the Buyer is kept fully up to date. Generally, if a parcel is misplaced by the courier for more than a day, the Seller will dispatch the goods again and organise a collection free of charge for the missing parcel when it is found.
Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as In the event of staggered dispatch of Goods, only one delivery charge will be applied.
If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
Notification of loss, damage or missing Goods from an order must be made in writing within seven days. Replacement Goods will be issued where applicable.
If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may: - store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
Delivery and collection charges are charged at cost and are therefore subject to change.
6. Return of Goods
The Seller will accept returns of Stock Products for credit, within three months of Invoicing, provided that returned Goods and packaging are in a clean, re-saleable condition. The Buyer will not under any circumstances accept damaged Goods or damaged packaging back into stock for credit.
The Seller will not refund any Stock Products that have been worn, customised or adjusted. Unworn footwear will not be accepted back for credit without the original undamaged shoebox, accompanying insoles and other packaging. Postage will not be credited by the Seller.
If the Stock Products returned were purchased as part of a discount bulk pack or any other type of special deal, the Stock Products will be reviewed by our Accounts Team to assess if a return is applicable and the subsequent value of the credit. The Accounts Team will also review any returns of Stock Products purchased more than three months from date of invoicing, to establish if it is possible to accept the return and issue a credit.
Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
Any devices sent back for alteration, adjustment or refurbishment must be in a reasonably hygienic and repairable state. All device alterations and adjustments will change the aesthetics of the device.
Postage will be charged for any returns or PPL collections for Complimentary Comfort Adjustments.
7. Risk and Property in the Goods
Risk of damage to or loss of the Goods shall pass to the Buyer: in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and repossess the Goods.
8. Warranties and Liability of the Seller
Subject to the conditions set out as follows the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of six months from delivery.
The above warranty is given by the Seller subject to the following conditions:
Damaged or devices suspected to be defective should be returned to the Seller to be assessed before replacement or repaired devices can be issued. The Seller will review the devices, evaluate the suspected faults and determine if it is due to a materials or workmanship fault.
The Seller guarantees the quality of materials and workmanship for all custom made devices, and will replace devices up to six months old with any material or manufacturing faults. There is also a one year guarantee against Shell Fracture for all CAD CAM and Handmade Orthoses shells and Carbonflex devices, however this does not include the collapse of a device which is often associated with inappropriate prescription for a heavier, highly active or hypermobile patient.
The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
The Seller shall be under no liability in respect of inappropriate prescriptions or instructions given for the provision of the Goods to the Buyer.
The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether given orally or in writing), misuse, alteration or repair of the Goods without the Seller’s approval.
The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Sale of Goods and Supply of Services Act, 19808), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Where the Goods are sold to a consumer (within the meaning of the Sale of Goods and Supply of Services Act, 19809) the statutory rights of the Buyer are not affected by these conditions.
Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
act of God, explosion, flood, tempest, fire or accident
war or threat of war, sabotage, insurrection, civil disturbance or requisition
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority
import or export regulations or embargoes
strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party)
difficulties in obtaining raw materials, labour, fuel, parts or machinery
power failure or breakdown in machinery
9. Intellectual Property
If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
the Seller is given full control of any proceedings or negotiations in connection with such a claim
the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations
except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld)
the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do)
the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this Condition.
10. Insolvency of the Buyer
This Condition applies if:
the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to the protection of the Court, has an examiner appointed to it or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction not involving insolvency); or (ii)
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
the Buyer ceases, or threatens to cease, to carry on business; or
the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
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