Terms & Conditions of Supply
1.1 Interpretation. The definitions and rules of interpretation set out below shall apply in respect of these Conditions:
"Conditions" means the terms and conditions set out in this document;
"Contract" means Vindon's quotation for the Equipment and/or Services and the Customer's acceptance of such quotation pursuant to clause 2.2;
"Customer" means the person, firm or company who places an order for the purchase of Equipment and/or Services from Vindon and to whom any invoice or quotation is addressed;
"Delivery" means the delivery of the Equipment in accordance with clause 5.1;
"Equipment" means the equipment specified in Vindon's quotation and the Customer's purchase order (as approved by Vindon);
"Group" means any subsidiary of Vindon Healthcare plc in any territory including Vindon Scientific Limited and Vindon Scientific (Ireland) Limited;
"IPR" means all patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
"Services" means the services to be provided by Vindon under the Contract as set out in Vindon's quotation together with any other services which Vindon provides, or agrees to provide in writing, to the Customer;
"VAT" means value added tax chargeable in the territory in which the Equipment and/or Services are provided.
"Vindon" means the member of the Vindon Group which provides the Equipment or Services to the Customer, which shall be the entity detailed on the Quotation and which is shown on the Invoice (or as otherwise notified to the Customer by Vindon);
When used in this Contract the words 'includes' and 'including' shall mean 'without limitation'.
2.1 Application of Conditions. These Conditions shall prevail over any terms or conditions submitted by the Customer or implied by law, trade custom, practice or course of dealing.
2.2 The Customer's purchase order, or the Customer's acceptance of a quotation from Vindon for Services and/or Equipment, constitutes an offer by the Customer to purchase the Services and/or Equipment specified in it subject to these Conditions. No offer placed by the Customer shall be accepted by Vindon other than: (a) by a written acknowledgement issued and executed by Vindon; or, (b) (if earlier) by Vindon commencing provision of the Services and/or Equipment.
2.3 When the requirements of 2.2(a) or 2.2 (b) are satisfied, a Contract for the supply and purchase of the Services and/or Equipment on these Conditions will be established without any further formality.
3.1 Vindon's Obligations. Vindon shall use its reasonable endeavours to provide the Services and/or to deliver the Equipment in accordance in all material respects with the quotation and the Customer's purchase order (as approved by Vindon).
3.2 Vindon shall use its reasonable endeavours to meet any dates for delivery of Equipment and/or performance of the Services which are agreed in writing between the parties but all such dates shall be estimates only and time shall not be of the essence for performance of the Services/delivery of Equipment.
4.1 Customers Obligations. The Customer shall:
4.1.1 co-operate with Vindon in all matters relating to the provision of the Services and the Equipment;
4.1.2 provide Vindon, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer's premises, office accommodation, data and other facilities as reasonably required by Vindon to provide the Services/Equipment;
4.1.3 be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from its premises in accordance with all applicable laws, before and during the supply of the Services at those premises; and
4.1.4 in advance of the Services being provided, inform Vindon of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's premises.
4.2 If Vindon's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Vindon shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. The Customer shall indemnify Vindon in full and on demand against any liability arising from death or personal injury to any personnel of Vindon caused by the Customer's negligence.
5.1 Delivery, Risk & Title. All deliveries of Equipment shall be on a CIP basis (INCOTERMS 2000) at the delivery address specified in the quotation, unless otherwise agreed between the parties.
5.2 Risk in the Equipment shall pass on Delivery. Title in the Equipment shall pass on receipt of payment in full for the Equipment.
5.3 Until title in the Equipment passes to the Customer, the Customer shall:
5.3.1 hold the Equipment on a fiduciary basis as Vindon's bailee; and
5.3.2 store the Equipment (at no cost to Vindon) separately from all other goods in such a way that they remain readily identifiable as Vindon's property.
5.4 The Customer grants to Vindon, its agents and employees the right to enter any premises in order to recover Equipment where the Customer's right to possession has terminated.
6.1 Warranties. Vindon warrants that:
6.1.1 the Equipment shall comply with Vindon's specification in all material respects for a period of 12 months from Delivery;
6.1.2 it shall provide the Services with reasonable skill and care and in accordance with good industry practice.
6.2 Vindon shall not be in breach of any of the warranties set out above unless:
6.2.1 in respect of Equipment, the Customer notifies Vindon of the breach within 10 days of Delivery or within 5 days of becoming aware of the defect (where such defect would not have been obvious on the date of Delivery);
6.2.2 in respect of Services, within 20 days of the date on which the Services were provided;
6.2.3 in respect of Equipment and Services, the Customer provides Vindon with a reasonable period of time, and no less than 30 days, to remedy the alleged defect.
6.3 Should Vindon decide to re-perform the Services or replace or repair the Equipment or refund any monies received from
6.4Vindon shall not be in breach of any of the warranties where the defect is attributable to an act or omission of the Customer including damage to the Equipment (whether wilful or accidental including any repairs or modifications undertaken by the Customer or with its permission), failing to follow Vindon's instructions in respect of the installation and operation of the Equipment and/or following the directions of the Customer.
7.1 Charges & Payment. The Customer shall pay the charges as set out in Vindon's quotation. All charges quoted to the Customer shall be exclusive of VAT, which Vindon shall add to its invoices at the appropriate rate
7.2 The Customer shall pay each invoice submitted to it by Vindon in full and in cleared funds by direct bank transfer, within 30 days of receipt (or such other period as is stated in Vindon's quotation or invoice) in the currency set out in Vindon's quotation without application of any right of set-off, abatement or deduction.
7.3 Without prejudice to any other right or remedy, if the Customer fails to pay Vindon on the due date, Vindon may take such action as it deems to be necessary to enforce such debt and the Customer shall indemnify Vindon in full and on demand against such costs, where reasonably incurred.
8.1 IPR. All IPR in the Equipment and any materials, information or documentation provided by Vindon to the Customer shall remain vested in Vindon at all times.
9.1 Confidentiality. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Vindon and any other confidential information concerning Vindon's business or its products.
10.1 Exclusion & Limitation of Liability – THE CUSTOMER'S ATTENTION IS SPECIFICALLY DRAWN TO THIS CONDITION. This condition 10 sets out the entire financial liability of the Vindon Group (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
10.1.1 any breach of the Contract;
10.1.2 the Services, the Equipment or any part of them; and
10.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract (save for section 12 of the Sale of Goods Act 1979).
10.3 Nothing in these Conditions limits or excludes the liability of the Vindon Group:
10.3.1 for death or personal injury resulting from its negligence; or
10.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by any member of the Vindon Group; or
10.3.3 any other form of damage or liability which cannot be excluded or limited by law.
10.4 Subject to condition 10.2 and condition 10.3
10.4.1 Vindon shall not be liable for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses including: (i) lost profits, (ii) lost business; and/or (iii) third party claims against the Customer; and,
10.4.2 Vindon's maximum aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid/payable for the particular element of the Services or Equipment to which the claim relates (provided that Vindon's liability to the Customer under this Contract and/or any other agreement between Customer and the Vindon Group shall not exceed £1,000,000 in aggregate).
11.1 Termination. Either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
11.1.1 the other party fails to pay any amount due under the Contract on the due date for payment; or
11.1.2 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
11.1.3 the other party enters into administration or becomes insolvent.
11.2 On termination of the Contract for any reason:
11.2.1 the Customer shall immediately pay to Vindon all of Vindon's outstanding unpaid invoices and interest and, in respect of Equipment and/or Services supplied but for which no invoice has been submitted, Vindon may submit an invoice, which shall be payable immediately on receipt;
11.2.2 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.1 Entire Agreement. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract. Nothing in this condition shall limit or exclude any liability for fraud.
13.1 General. The Customer shall not, without the prior written consent of Vindon, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the Contract. A person who is not a party to the Contract shall not have any rights under or in connection with it. Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party to the address shown on Vindon's invoice or quotation. Any notice shall be deemed to have been duly received if delivered personally, or if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed. No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties. Vindon shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its control.
14.1 Governing Law & Jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter (save that Vindon shall be entitled to seek interim relief in any court in any jurisdiction willing to accept jurisdiction to protect its IPR and confidential information).
V1 April 2008
