- "The Carrier" means any individual, company or organisation carrying out delivery of the Goods.
- "The Company" means Brawn Ophthalmics Ltd.
- "The Conditions" means the terms and conditions of sale set out herein.
- "The Contract" means any agreement for the purchase of Goods or Services.
- "The Goods" means any equipment, parts or material to be supplied by the Company to the Purchaser.
- "The Purchaser" means the person, firm, institution, body or company to whom Goods or Services are supplied subject to the Conditions.
- "The Services" means services of any description provided by the Company to the Purchaser.
Unless otherwise specifically agreed by the Company in writing, the Conditions shall apply to all Contracts to the exclusion of all other terms and conditions including any terms or conditions which the Purchaser may purport to apply in any document issued by the Purchaser including but without limitation those contained in any order sent by the Purchaser. Acceptance of delivery of the Goods or commencement of the performance of the Services shall be deemed conclusive evidence of the Purchaser's acceptance of the Conditions. No particulars contained in any advertising matter, catalogues or other publication supplied by the Company (other than specifically referred to herein) or any verbal representation by an employee or agent of the Company shall form part of the Contract nor shall it be treated as constituting a representation on the part of the Company.
The price payable for the Services under the Contract shall be as stated in the quotation sent by the Company and shall not be varied otherwise than by agreement in writing between the parties. All prices quoted are excluding Value Added Tax. Delivery to the Purchaser's premises will be arranged by the Company and the cost of delivery (including, but without limitation, carriage, packing, duty and insurance) will be charged to the Purchaser. Any query by the Purchaser of any invoice rendered by the Company must be made in writing within 30 days of the date of that invoice otherwise the parties agree that such invoice shall be deemed accepted and the Purchaser's right to raise any query waive.
4. Terms of Payment
The Purchaser will be sent an invoice for the price of Goods/Services rendered on delivery of or after despatch of the Goods. The Purchaser will be sent an invoice upon completion of the Services. In the event of payment not being received by the due date, the Company reserves the right to charge interest on sums owing at 4% above the base lending rate of Barclays Bank Plc and the Company may suspend deliveries or terminate the Contract in respect of any undelivered Goods or unperformed Services or terminate any other contracts or orders with the Purchaser.
5. Property & Risk
Property in the Goods will remain with the Company until payment in full has been received by the Company of all sums due, including interest where payable, in accordance with the Condition 4 under Terms of Payment.
Unless otherwise agreed in writing between the parties, all deliveries by the Company will be to the Purchaser's address as appears on the Company's records. The estimated delivery date will be as quoted on the Company's dispatched email or as otherwise notified by the Company to the Purchaser. The Company will not be liable in any way for any direct or indirect loss, damage or expense (including loss of profits and liability to third parties) suffered by the Purchaser as a consequence of any delay in delivery or despatch of Goods or for delay in completion of any Services.
7. Defects, Damage Loss or Non Delivery
The Purchaser shall inspect all Goods on delivery and shall notify the Company of any alleged defect in operation or workmanship, damage or failure to comply with original service rendered by the Company in writing within three days of physical receipt.
It is agreed that the Purchaser waives any claims he may otherwise have had where claims have not been made in writing within the aforesaid period. The packaging and contents must be retained and the Purchaser shall give the Company an opportunity to inspect the Goods within a reasonable time following delivery before any use is made of them.
Without prejudice to the foregoing the Purchaser must advise the Company in writing, within seven days of the date of receipt of an invoice, of any non-delivery of Goods. Notwithstanding the receipt by the Company of any such notice a clear signature on a Carrier's delivery advice sheet shall be deemed to signify receipt of goods indicated thereon. If the Purchaser shall fail to comply with the foregoing the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect in operation or workmanship or damage which would be apparent on a reasonable examination of the Goods and the Purchaser shall be deemed to have accepted the Goods. If the Purchaser establishes to the Company's reasonable satisfaction that the Goods are not in accordance with the Contract or there is any defect in operation or workmanship, the Purchaser's sole remedy in respect thereof shall be limited as the Company may elect, to making good any defect, to a complementary service or refunding all, or part of, the Contract price against return of the Goods.
8. Force Majeure
The Company shall not be liable for failure to deliver the Goods or supply the Services for any reason whatsoever outside the reasonable control of the Company including, without limitation to the generality of the foregoing, industrial action, war, governmental action, or regulation, act of God, riots or non-availability of stocks or materials and any delays by third party manufacturers in supplying any parts or materials. Any such failure shall not affect the obligation of the Purchaser to pay for Goods already delivered or Services already supplied.
Unless otherwise agreed by the parties in writing, the warranty on Serviced/ Repaired Goods provided by the Company is for a period of three months from date of dispatch, the Company warrants that it will provide, for the repair, at its option of defective operation and defective workmanship in the Goods (which would not have been apparent on a reasonable examination of the Goods prior to delivery. Further conditions
(i) Subject to due compliance with such operating instructions as may be supplied (where applicable) with its goods and to normal usage, the Company warrants that any equipment or part externally manufactured by the Suppliers will correspond with its specification and be free from defects of material or workmanship for a period of three months from the date of dispatch and in the event of any such equipment or part being defective, undertakes to replace or repair it free of charge provided that it is returned to the Company HQ, Windsor, United Kingdom, carriage and insurance paid by the Purchaser.
(ii) If the goods supplied under any contract consist of or include equipment manufactured by any other person or company in respect of which a warranty or guarantee has been given to the Company by the supplier thereof, the Company agrees to assign the benefit of such warranty or guarantee to the Purchaser.
(iii) The warranty contained in paragraph (i) of this clause shall immediately cease to have effect if any equipment or any part of the equipment:
(a) has been injured by neglect or has been improperly installed or used, or
(b) has had the identification marks or number removed, or
(c) has been repaired or serviced by any person or company other than the Company representatives.
Goods may only be returned to the Company with the prior consent of the Company and on terms to be determined at the absolute discretion of the Company and must be securely packed and, unless the carrier effecting the return is instructed by the Company, must be consigned carriage paid and fully insured. Goods returned without the prior written approval of the Company may at the Company's absolute discretion be returned to the Purchaser or retained at the Purchaser's costs without prejudice to any rights or remedies the Company may have.
11. Exclusion of Liability
The Company shall not be liable for any loss, damage or expenses (whether direct, indirect, consequential or otherwise) suffered or incurred by the Purchaser arising out of the delivery, installation, sale, use or maintenance of the Goods and/or the provision of the Services except for any loss, damage or expenses arising from any defect in operation or workmanship in the Goods which would not have been apparent upon a reasonable inspection of the Goods upon delivery or any negligent act or omission or wilful default of the Company save that where the Company is liable for any loss, damage or expenses, the Company shall not be liable for any consequential or indirect loss, damage or expenses suffered by the Purchaser (including but not limited to loss of profit, loss of goodwill, costs and expenses payable to third parties).
The Purchaser shall indemnify the Company for all loss, damage and expenses (whether direct, indirect, consequential or otherwise) suffered or incurred by the Company arising from the delivery, installation, use or maintenance of the Goods or provision of the Services whether by the Purchaser or any third party, save that the Purchaser shall not be required to indemnify the Company if and to the extent that the Company is liable under Condition 11 Exclusion of Liability.
13. Intellectual Property Rights
The Company shall indemnify the Purchaser for and against any claim made or action brought in respect of infringement of, copyright, trade marks, trade names, or any other intellectual property rights in respect of the Goods/Services, provided that the Purchaser shall have notified the Company forthwith in the event of any claim or action being brought or threatened in this respect. The Company shall be entitled to conduct all negotiations and take all necessary proceedings to dispute such a claim in its own name or in the name of the Purchaser or in both names but the conduct of proceedings and negotiations shall be completely at the discretion of the Company. The Purchaser agrees to execute all such documents and do all such things and render all such assistance to the Company as the Company shall require. The Purchaser shall take all steps to ensure that it does not prejudice the Company's situation in this respect.
14. Sub Contracts
The Company expressly reserves the right to sub-contract the performance of any Contract for the supply of Goods or provision of Services or any part thereof.
15. Failure of Obligation by the Buyer
Sums outstanding in respect of any Goods or the performance of any Services shall become immediately payable if: (i) the Purchaser fails to make payment for the Goods in accordance with Condition 4 or (ii) commits any other breach of the Contract, or (iii) if any distress or execution shall be levied upon any of the Purchaser's goods or if the Purchaser offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy be presented against the Purchaser or the Purchaser is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Purchaser (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Purchaser's business or if the Purchaser shall suffer any analogous proceedings under foreign law or if the Purchaser ceases or threatens to cease to carry on business. In addition, the Company may in its absolute discretion and without prejudice to any other rights which it may have: suspend all future deliveries of Goods to the Purchaser and/or supply of Services and/or terminate the Contract without liability upon its part, and/or exercise any of its rights pursuant to Condition 5 Property & Risk.
16. Set off & Counterclaim
The Purchaser shall not be entitled to withhold payment of any invoice by reason of any right of set off or counterclaim which the Purchaser may have or allege to have or for any other reason whatsoever.
17. Law & Jurisdiction
These Conditions and the Contract shall be governed in all respects by English law and any dispute hereunder shall be subject to the non-exclusive jurisdiction of the English Courts.
Any provision or term of these Conditions or of any Contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision hereof.
No waiver or forbearance by the Company, whether express or implied, in enforcing any of its rights hereunder shall prejudice its right to do so in the future.
The Purchaser may not assign, subcontract or in any way dispose of its rights or obligations under the Contract without the prior written consent of the Company.