TERMS AND CONDITIONS OF SALES GOODS AND SERVICES
1.1 In these Terms and Conditions:
The Buyer means the person, firm, company or other organization, person who or which has ordered Products and/or Services from IVFSynergy Ltd, also as described below as IVFS, either with the provision of a contractual Purchase Order (PO) or money transfer.
The Contract means the contract for the sale and purchase of Products and/or Services between IVFS and the Buyer as may be further evidenced by IVFS’s final written offer, quotation or order acknowledgement and no prior proposals, statements, representations or conditions will be binding on either party;
The Equipment means all electronic equipment, hardware and other electronic or mechanical items agreed to be supplied by IVFS;
The Goods means all items agreed to be supplied by IVFS other than the Equipment and Software;
The Products means any Goods, Equipment or Software agreed to be supplied by IVFS;
The Services means all advice given and services performed by IVFS directly; and
-The Software means any firmware, software or data compilations (i) identified in the Contract or (ii) provided to Buyer by IVFS in connection with installation or operation of the Equipment. For the avoidance of doubt, Software shall not include any "open source" firmware, software or data compilations, as any such "open source" firmware, software or data compilations will be subject to the terms and conditions set out in the relevant "open source" license.
1.2 These Terms and Conditions shall be incorporated into the Contract and shall apply to the exclusion of any conditions of the Buyer. These Terms and Conditions may not be varied or waived except with the express written agreement of IVFS. The failure of IVFS to enforce its rights under the Contract at any time, for any period of time, shall not be construed as a waiver of any such rights.
2. PRICES AND QUOTATIONS
The price of the Products and/or Services will be IVFS's quoted price, inclusive of any duties, but exclusive of value added or other taxes. All quotations issued by IVFS for the supply of Products and/or Services shall remain open for acceptance for the period stated in the quotation or, if none is stated, for sixty (60) days. In all other cases, prices payable are those currently in effect in IVFS´s then current pricelist, which may include charges for handling, freight, packaging, insurance and minimum orders.
3.1 Unless otherwise stated or agreed in writing, the Buyer shall make payment to IVFS in full, without any set-off or deduction,
(i) no later than thirty (30) days from the date of invoice, in the currency invoiced;
(ii) solely via electronic funds transfer originating from Buyers account held in the country of Buyers principal place of business.
3.2 In the event of late payment, IVFS reserves the right:
(i)to suspend deliveries and/or cancel any of its outstanding obligations; and
(ii)to charge interest at the lower of (a) an annual rate equal to twelve (12) % and (b) any applicable maximum statutory rate on all unpaid amounts calculated on a day to day basis until the actual date of payment.
4. CHANGES AND RETURNS
4.1 IVFS reserves the right, subject to prior written notice, to make any change in the specification of the Products, which does not materially affect the installation, performance or price thereof. 4.2 Products may only be returned with prior authorization from IVFS.
5.1 Any term of delivery shall be construed according t,he latest edition of Incoterms. If no other term of delivery has been specified in the Contract the Products will be delivered CIP to Buyers premises or to the agreed destination.
5.2 Partial deliveries and related invoicing shall be permitted. If the Buyer fails to accept delivery of the Products within a reasonable period after receiving notice from IVFS that they (or any part thereof) are ready for delivery, IVFS may dispose of or store the Products at the Buyer's expense.
5.3 IVFS will use all reasonable endeavors to avoid delay in delivery on the notified delivery dates. Failure to deliver by the specified date will not be a sufficient cause for cancellation, nor will IVFS be liable for any loss or damage due to delay in delivery.
5.4 The Buyer shall notify IVFS in writing within five (5) working days of delivery of any short delivery or defects reasonably discoverable on careful examination. IVFS’s sole obligation shall be, at its option, to replace or repair any defective Products or refund the purchase price of any undelivered Products.
5.5 Where delivery of any Product requires an import ot export license or other authorization before shipment, IVFS shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.
5.6 Where the Equipment requires installation, the Buyer shall be responsible at its own cost for making the place where the Equipment will be located ready for installation in accordance with IVFS’s instructions. Installation will not begin unless such responsibilities are completed and confirmed in writing to IVFS staff or agents.
5.7 Following installation, and where applicable, IVFS will proceed with final testing using IVFS’s published performance specifications and using its standard instruments and procedures. Upon the satisfactory completion of such final testing demonstrating compliance with the above specifications (with any permitted variations/tolerances) IVFS may issue a Test Certificate which shall be conclusive evidence of such compliance and thereupon installation of the Equipment shall be deemed to be complete and in compliance with IVFS’s obligations under the Contract. In any event Buyer agrees that the Equipment is accepted (i) seven (7) days after the date on which IVFS notifies Buyer that final testing was successfully completed, or issues the Test Certificate or (ii)on the date Buyer first uses the Equipment for operational use, whichever is earlier. IVFS and Buyer each agree that for partial deliveries this Section applies to each item of Equipment.
5.8 Buyer, at its reasonable request, shall be entitled to be present at and to witness the testing and shall not be entitled to raise any objection to testing carried out, or to the results thereof, if Buyer failed to attend when advised that testing was to take place. It is an authority here that all testing is conducted as required during installations, as indicated in the quote and later service reports from IVFS or its agents.
6. RISK AND TITLE
6.1 The risks of loss of and damage to the Products shall transfer to Buyer in accordance with agreed delivery term and once delivery has been made to site and before any movement or installation. Full title to the Goods and Equipment shall pass to the Buyer on full payment of invoice. In case of non-payment by the Buyer, IVFS, without prejudice and in addition to any rights it has under Section 3.2 or otherwise, may take back all or part of the Goods and Equipment and dispose of these at its sole discretion with a view to mitigating the consequences of the non-payment by Buyer (to avoid doubt all depreciation, de-installation and other costs will be borne by Buyer).
6.2 In relation to any Equipment used for clinical or diagnostic purposes, the Buyer shall keep adequate written records of the identity of any person or entity to whom the Equipment is transferred and of the location of such Equipment and shall procure that any purchaser of such Equipment is subject to the same requirement in respect of any onward sales.
7.1 Where IVFS is to provide Services, the Buyer shall ensure that adequate and safe facilities exist at its premises and that IVFS is properly notified of any relevant regulations or protocol. It is the sole responsibility of the Buyer to ensure adequate training and support to IVFS and their agents before laboratory access is granted.
7.1.1 Upon completion of Service or Support role IVFS will provide comprehensive service and support paperwork strictly associated with the initial Purchase Order and Quote from IVFS and in accordance with clause 5.8 above.
7.2 If the Buyer has purchased a Product or Service including remote access support, the Buyer shall permit IVFS to connect to the Products by remote access as may be beneficial to the performance of maintenance or repair activities as part of IVFS’s warranty obligations or otherwise. This may include automatic software downloads and proactive monitoring and access to performance data related to the products, to gather and use products- and resource usage data in various ways such as product development, quality initiatives, benchmarking and reporting services.
7.3 Where a product is provided by IVFS and serviced or otherwise maintained by a third party or unverified user IVFS are entirely absolved of all warranty and / or support requirements. It is highly recommended to only use approved or certified agents
8. RESTRICTED USE
8.1 With respect to certain Products, use restrictions are a condition of the purchase which the Buyer must satisfy by strictly abiding by the restriction as set forth HFEA or equivalent guidelines and/or on the Product and/or accompanying documentation. Buyer is solely liable to ensure compliance with any regulatory requirements related to the Buyer's use of the Products. Any warranty granted by IVFS to the Buyer shall be deemed void if any Products covered by such warranty are used for any purpose not permitted hereunder.
In addition, the Buyer shall indemnify IVFS and hold IVFS harmless from and against any and all claims, damages, losses, costs, expenses and other liability of whatever nature that IVFS suffers or incurs by reason of any such unintended use.
8.2 With respect to Products regulatory approved for clinical and medical treatment and diagnostic use, any decisions relating to such treatment and use shall be at the risk of the Buyer and the respective healthcare providers.
9. GENERAL WARRANTY
9.1 Section 9.2-9.5 shall apply in the event no other specific warranty has been agreed in the Contract.
As regards any Products covered by a warranty issued by a third party manufacturer, such warranty terms shall apply to the exclusion of Section 9.2-9.5.
9.2. Goods - IVFS warrants that its Goods meet IVFS’s specifications at the time of delivery. All warranty claims on Goods must be made in writing within ninety (90) days of receipt of the Goods. IVFS’s sole liability and Buyers exclusive remedy for a breach of this warranty is limited to repair, replacement or refund at the sole option of IVFS.
9.3 Equipment – IVFS’s Equipment of its own manufacture is warranted from date of delivery or IVFS completing any agreed installation works, if later, to be free of defects in workmanship or materials under normal usage for a period of one (1) year and any claim shall be submitted in writing within such period. IVFS’s sole liability and Buyers exclusive remedy for a breach of this warranty is limited to repair, replacement or refund at the sole option of IVFS.
Such repairs or replacement will not extend the warranty period.
IVFS warrants, for a period which is the longer of:
(i) three (3) months from the date of delivery or;
(ii) in the event the Software is intended to be installed and run on IVFS’s Equipment of its own manufacture, twelve (12) months from the date of delivery, that the Software substantially conforms to its published specifications and that the media on which the Software resides will be free from defects in materials and workmanship under normal use and any claim shall be submitted in writing within such period. IVFS does not warrant that the Software is error free or that Buyer will be able to operate the Software without problems or interruptions. IVFS´s sole liability and Buyers exclusive remedy in the event of breach of this warranty is limited to repair, replacement or refund, at the sole option of IVFS.
IVFS warrants that all Services will be carried out with reasonable care and skill. IVFS’s sole liability for breach of this warranty shall be at its option to give credit for or re-perform the Services in question. This warranty shall only extend for a period of thirty (30) days after the completion of the Services and any claim shall be submitted in writing within such period.
9.6 To the maximum extent permitted by applicable law IVFS hereby expressly disclaims, and Buyer hereby expressly waives, any warranty regarding results obtained through the use of the Products, including without limitation any claim of inaccurate, invalid, or incomplete results. All other warranties, representations, terms and conditions (statutory, express, implied or otherwise) as to quality, condition, description, merchantability, fitness for purpose or non-infringement (except for the implied warranty of title) are hereby expressly excluded.
9.7 Unless expressly agreed, IVFS is not obliged to carry out dismantling or reinstallation of any Product in connection with any warranty claims.
10. LIMITATION OF LIABILITY
10.1 IVFS shall have no liability under the warranties contained in Section 9 in respect of any defect in the Products arising from: specifications or materials supplied by the Buyer; fair wear and tear; wilful damage or negligence of the Buyer or its employees or agents; abnormal working conditions at the Buyer's premises; failure to follow manufacturer or that notwithstanding, IVFS's use restrictions or instructions (whether oral or in writing); misuse or alteration or repair of the Products without IVFS's approval; or if the Buyer is in breach of its payment obligations under this Contract.
(i) the Products (provided such Products comply with its specifications) are suitable and safe for the Buyers intended use; (ii) the Products are handled in a safe manner. (iii) containers, packaging, labelling, equipment and vehicles, where provided by the Buyer, comply with all relevant national and international safety regulations.
10.2 Subject to any express obligation to indemnify, neither party shall be liable for any indirect or consequential, or punitive damages of any kind from any cause arising out of the sale, installation, use or inability to use any Product or Service, nor for, without limitation, loss of profits, goodwill or business interruption.
10.3 The total liability of IVFS arising under or in connection with the Contract, including for any breach of contractual obligations and/or any misrepresentation, misstatement or tortious act or omission (including without limitation, negligence and liability for infringement of any third party intellectual property rights) shall be limited to damages in an amount equal to the amount paid to IVFS under the Contract less reasonable incurred costs.
10.4 The exclusion of liability in these Terms and Conditions shall only apply to the extent allowed according to applicable law.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Where the Buyer supplies designs, drawings, and specifications to IVFS to enable it to manufacture non-standard or custom made Products, the Buyer warrants that such manufacture will not infringe the intellectual property rights of any third party. 11.2 All intellectual property rights in the Products and/or Services shall at all times remain vested in IVFS or its licensors.
12. DATA PROTECTION
12.1 The Buyer and IVFS shall each comply at all times with data protection laws in respect of any personal data processed by it under the Contract.
12.2 Where IVFS may process patient personal data stored in Equipment or Software when performing the Services, the following provisions shall apply:
(i)The Buyer is the data controller and has the sole and exclusive authority to determine the purposes and means of the processing of patient personal data by IVFS. IVFS shall process such personal data only for the purposes of providing the Services in Accordance with the Buyers instructions.
(ii) The Buyer shall, to the extent legally required, provide appropriate notice to each individual and obtain requisite consent to such processing of his or her personal data and any sensitive personal data
(iii) The Buyer shall endeavor to limit the disclosure of patient personal data to IVFS To that reasonably necessary to perform the Services.
(iv) IVFS shall keep patient personal data confidential and shall implement technical and organizational measures to protect it against accidental, unlawful or unauthorized destruction, loss, alteration, disclosure or access.
12.3 Prior to returning any Equipment to IVFS, the Buyer shall decontaminate it and ensure that all personal data, including but not limited to patient personal data stored in such Equipment is deleted. The Buyer acknowledges that, in any case, all data and settings stored in the returned Equipment may be deleted by IVFS.
12.4 During the term of this Contract, the Buyer may provide IVFS with personal data relating to its personnel or other individuals involved in the use of the Products or Services. The Buyer consents to the processing of this personal data by IVFS, and by its affiliates and their respective suppliers (subject to IVFS taking reasonable steps to ensure that any sub-processor of personal data complies with data protection laws in respect of any personal data processed by it), and shall, to the extent legally required, provide appropriate notice to each individual or obtain requisite consent to such processing of his or her personal data and any sensitive personal data for the following specific purposes:
(i) performing the Contract; (ii) providing information about IVFS Products and Services; (iii) transferring personal data as specified in Section 12.5; and (iv) satisfying legal or regulatory requirements.
12.5 IVFS may transfer personal data relating to the patients, the Buyers personnel or other individuals involved in the use of the Products and Services to recipients located in countries outside of the European Economic Area and to the extent the Buyer is the data controller of such personal data, the Buyer shall (1) provide appropriate notice to the relevant individuals, (2) obtain any requisite consent, (3) provide individuals with applicable choices with respect to the use, disclosure or other processing of their personal data, and (4) provide individuals with the opportunity to exercise their right to access their personal data. IVFS has taken steps to provide adequate protection with respect to personal data sent outside of the European Economic Area, and shall, upon request of the Buyer, negotiate regarding any further data processing or data transfer agreement as may be required to support the lawful transfer of personal data.
12.6 The Buyer agrees that IVFS may process certain de-identified and/or aggregated Data for the purpose described in Section 7.2.
12.7 For the purposes of this Section 12, the terms personal data, sensitive personal data, data processor and data controller shall have the meanings accorded to them in the Data Protection Act 1998.
13. HEALTH AND SAFETY
13.0 The Buyer shall ensure that:
i. Both the facility and the equipment, furniture or associated materials that IVFS or its agents are requested to use by the Buyer either directly or by association are clear of threat and/or risk and safe to work with and reasonable access is granted from loading location through to final position. ii. Where any manual lifting is required, IVFS or its agents will use, within reason and approved by the Buyer, all possible measures, such as lifting equipment, rollers or other devices to reduce the manual handling risks to its agent. The buyer ensures that all measure are undertaken to allow such equipment to be used where required. iii. Where there is a risk of damage to either the facility or other equipment in the use of such equipment it is the duty of the Buyer to suitably protect their existing equipment and or facilities. The Buyer indemnifies IVFS from any such damage reasonably caused whilst delivering, installing or servcing equipment. iv. That neither IVFS or its agents will be held accountable for delays or additional costs should any service or delivery of equipment not be possible due to point i, ii and iii above
13.1 Where an installation or service requires the removal of materials or crates associated with delivery the Buyer agrees to be responsible for the removal of all materials from a reasonable and agreed unpacking area and confirms that IVFS are not responsible for any damage or personal harm in relation to such materials either in position or in later removal.
13.2 The Buyer hereby agrees to isolate, make safe and remove, at its own expense, any and all materials that have been deemed by IVFS or its agents as Biologically hazardous or likely to contain risk. It is the sole responsibility of the Buyer to protect the agents and staff on site at the location of the service from any such event.
Except where a claim arises as a direct result of the negligence or breach of contract of IVFS, the Buyer shall indemnify IVFS in respect of any claim which may be made against IVFS: (i) arising in connection with the Buyer’s unintended use of the Products; (ii)alleging that the Buyer´s use of the Products infringes the intellectual property rights of any third party.
In the event that the Buyer or IVFS becomes insolvent or applies for bankruptcy or, being a company, goes into liquidation (other than for the purposes of reconstruction or amalgamation), IVFS shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of IVFS hereunder.
16. ASSIGNMENT SUBCONTRACTING
IVFS may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any third party with the Buyer’s consent.
Buyer agrees to execute any documents that may be necessary to complete IVFS’s assignment or novation.
IVFS may subcontract portions of the work, as required for the specific task. The Terms Conditions and Indemnities of the subcontractor will supersede those of IVFS in such situations and the Buyer indemnifies IVFS as such.
Buyer shall not delegate or assign any or all of its rights or obligations under the Contract without IVFS’s prior written consent [which consent shall not be unreasonably withheld] and any purported delegation or assignment of such rights or obligations shall be void.
17. FORCE MAJEURE
17.1 A party shall not be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to, strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts or threats of terrorism, plant breakdown, computer or other equipment failure and inability to obtain equipment.
17.2 If an event of force majeure exceeds one (1) month a Party may cancel the Contract without liability.
18. SOFTWARE LICENSE
Unless a separate software license agreement has been concluded concerning the Software, the Buyer is hereby granted a non-exclusive license to use the Software solely in object code format and solely for its own internal business purposes subject to the terms contained herein. The Buyer shall not (i) use the Software for purposes other than those for which it was designed; (ii) use the Software in connection with other manufacturers' products unless such connectivity is authorized in the Product documentation; (iii) grant, assign, transfer, or otherwise make available to third parties any right whatsoever in the Software; (iv) disclose to third parties any information contained in the Software; (v) copy or reproduce the Software (except for one copy for back-up purposes or as may otherwise be permitted by applicable law); (vi) alter or modify the Software; or (vii) reverse engineer, decompile, disassemble or create any derivative works based upon the Software except as expressly permitted by mandatory law.
19. EXPORT CONTROL
The Buyer undertakes not to re-export the Products without the requisite export license from the relevant body of the United Nations or other similar international organization, the United States Government, the country of origin or the original country of export. The requirement to obtain a license may vary depending on the country of destination, the end user, the end use and other factors. Upon request from IVFS the Buyer shall furnish IVFS with copies of all documents relating to such re-export.
20 WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)
20.1 Where the Buyer sells, disposes of or otherwise transfers the Equipment to any third party and where this would unreasonably increase the cost of the collection, treatment or recycling of the Equipment for IVFS under applicable WEEE legislation, Buyer shall be liable to IVFS and indemnify IVFS for such increased costs.
20.2 Should the Equipment that Buyer acquires from IVFS be Equipment, which is intended to replace on a 'like for like'-basis, any item of Buyers existing equipment (e.g. the new Equipment is of an equivalent type or is fulfilling the same function as Buyers existing equipment) Buyer must in respect of such existing equipment have clearly indicated to IVFS the following: the brand, type, age, condition, current use and the exact location and all other relevant information. In the event Buyer has not complied with such obligations, IVFS may charge Buyer such reasonable additional fees to reflect any related obligations it may have under national legislation regarding the recycling, reuse and/or disposal of such existing equipment and related costs it may incur.
20.3 Unless the relevant mandatory national legislation provides otherwise, or unless otherwise agreed in writing, IVFS´s obligation does not include without limitation, creation of physical access to the equipment; de-installation; decoupling; disinfecting; craning/lifting; transportation to a ground level loading area or -ramp; packing; or any related similar activities; and Buyer agrees to perform such activities at its own cost as and when required.
21. GOVERNING LAW
This Contract shall be governed by and construed in accordance with the substantive laws of the United Kingdom and the parties hereby submit to the non-exclusive jurisdiction of the courts of that country.
22. PRODUCT-SPECIFIC TERMS AND CONDITIONS
Additional terms and conditions govern the sale of certain Products and Services. These additional terms and conditions are available from the sales offices of IVFS and shall take precedence in the event of any inconsistency with these Terms and Conditions.
23. TRANSLATIONS AND LOCAL VARIATIONS
Translations of these terms and conditions are available from the sales offices of IVFS. In some territories, local variations to these Terms and Conditions may apply. If so, such variations shall not take precedence in the event of any inconsistency with these Terms and Conditions.
The below agent for IVFS hereby signs that the above is in accordance with policy and is this day incorporated as the Terms and Conditions of sales for IVFSynergy Ltd
Rob Watkins Director