1. DEFINITIONS

“the Purchasers” shall mean the person, firm or company to whom the Sellers sell the Goods;

 

“the Sellers” shall mean Covision Medical Technologies Ltd. In these General Conditions the following expressions shall have the following meanings:-
“the Contract” shall mean any written or verbal contract between the Covision Medical Technologies Ltd. and the Purchasers of the goods incorporated in these General Conditions;
“the Goods” shall mean the products and any other goods agreed in the Contract (including without limitation any part or parts of them) to be supplied by the Sellers to the Purchasers;


2. OFFERS AND ORDERS


a) Subject to any variation under clause 2b) the Contract shall be subject to these General Conditions of Sale to the exclusion of any other terms and conditions (including without limitation any terms or conditions which the Purchasers purport to apply under any purchase order, confirmation of order, specification or other document).

 

b) Any variation to these General Conditions of Sale and any representations about the Goods shall have no effect unless expressly agreed in writing by the Sellers. The Purchasers acknowledge that it has not relied on any statement, promise or representation made or given by or on behalf of the Sellers which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller’s liability for fraudulent misrepresentation.

 

c) A quotation is valid for a period of [30] days only from its date, provided that the Sellers have not previously withdrawn it. Any order or acceptance of quotation shall constitute an offer by the Purchasers to buy Goods subject to these General Conditions of Sale. No order placed by the Purchasers shall be deemed to be accepted until the Sellers issues an official form of acknowledgement of order signed on behalf of the Sellers or (if earlier) the Sellers deliver the Goods to the Purchaser. The Purchasers’ acceptance of delivery of the said acknowledgement of order or the Purchasers acceptance of delivery of the Goods (if earlier) shall be deemed acceptance of these General Conditions of Sale (as varied if a variation has been specifically accepted by the Sellers in writing in accordance with clause 2b).

 

d) Where the Purchaser wishes to change any part of an order or specification it shall notify the Seller. The Seller shall have the right to decide whether or not it is willing to accommodate the change and if so it shall supply the Purchaser with details of the effect that such change will have on any agreed price or deadlines and any other relevant factors. The Purchaser shall then promptly notify the Seller if it wishes to proceed with the change whereupon the Contract shall be deemed to incorporate such change and any other changes specified by the Seller in relation to price, deadlines and any other factors. Pending formal acceptance of the change the Seller reserves the right to choose whether or not to continue with the original Contract or whether to suspend performance pending acceptance of the change.

 

e) Where the Purchasers request a modification to any technical specification or to any element of the Goods and the Sellers agree such modification, the Sellers may extend any deadline for performance by a reasonable amount of time to reflect the work involved in making the modification.


3. PRICE AND PAYMENT


a) The price for the Goods shall be the price set out in the acknowledgement of order or where no price is specified shall be the price set out in the Seller’s price list current at the date of delivery or deemed delivery. The price for the Goods shall be exclusive of any VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Purchasers shall pay in addition when it is due to pay for the Goods. The Sellers shall be entitled to increase the price quoted on the order acknowledgement by an amount equivalent to the total of any costs that the Seller incurs in connection with the Purchasers’ instructions or lack of instructions or failure to comply with its obligations hereunder.

 

b) The Purchasers shall make payment as agreed in writing with the Seller’s net cash in the agreed currency, where no agreement is in place the payment shall be made in US Dollars by the last working day of the month following the month in which the Goods are delivered or deemed to be delivered.

 

c) Where Goods are to be delivered by installments payment for each instalment shall be a condition of delivery by instalments unless otherwise stated/agreed.

 

d) Time of payment shall be of the essence. In the event that payment is not made in accordance with this clause 3 , the Sellers reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 at the rate in force from time to time (currently set at 8% above the base rate of the Bank of England) both before and after any judgement. This is without prejudice to any other right or remedy available to the Sellers.

 

e) The Purchasers shall make all payments due under the Contract in full without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchasers have a valid court order requiring an amount equal to such deduction to be paid by the Sellers. All payments payable to the Sellers under the Contract shall become due immediately on its termination despite any other provision.


4. DELIVERY


a) Any delivery date specified by the Sellers is an estimate only and time for delivery shall not be made of the essence by notice.

 

 b)The Sellers may terminate any Contract or suspend performance of its obligations under any Contract by notice effective immediately and without liability to the Purchasers if any account of the Purchasers is overdue for payment, if the Purchasers are in material breach of any of its obligations under the Contract, if the Purchasers make any voluntary arrangement or composition with its creditors or (being an individual) becomes bankrupt, if an order is made for the appointment of an administrator to manage the affairs, business and property of the Purchasers or notice of intention to appoint an administrator is given by the Purchasers or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), if a resolution is passed or an order is made for the winding up of the Purchasers (otherwise than for the purpose of amalgamation or reconstruction), the Purchasers cease or threaten to cease to carry on business, the Purchasers take or suffer any similar or analogous action in any jurisdiction in consequence of debt or the Sellers reasonably believes that the Purchasers’ financial situation may adversely effect the Purchasers ability to pay for the Goods.

 

c) Unless otherwise agreed in the acknowledgement of order, the Sellers shall deliver the Goods ex-works. Where the Sellers agree to deliver to the Purchaser’ premises the cost of such delivery shall be charged to the Purchasers and payment shall be due when the price of the Goods become.

 

d) If the Purchasers shall fail to take delivery of any Goods or the Sellers are unable to deliver the Goods on time because the Purchasers have not provided appropriate instructions, documents licences or authorisations, risk in the Goods shall pass to the Purchaser (including without limitation for loss or damage caused by the Seller’s negligence), the Goods shall be deemed to have been delivered and the Sellers shall have the right to charge the Purchaser for any additional costs incurred including without limitation, storage and insurance costs.

 

e) The Sellers are entitled to make delivery by instalmentsinstallments and each instalmentinstallment shall be a separate Contract. No cancellation or termination of any one Contract relating to an instalmentinstallment shall entitle the Purchasers to repudiate or cancel any other Contract or instalmentinstallment.

 

f) The Seller shall not be liable for any direct, indirect, consequential or special loss (including without limitation loss of profit), costs, expenses or damages arising out of or in connection with late delivery nor shall any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds [180] days.

 

g) To the extent that the Sellers undertake responsibility for the delivery of the Goods their liability for damage to the Goods in transit or for non-delivery of the Goods arising from any neglect or default of Sellers or the Seller’s employees or independent contactors or howsoever arising or caused shall be extinguished if the Purchasers do not notify the Sellers and the Carrier of any such claim within 7 days of delivery in the case of damage in transit or within 14 days from the date of the Sellers advice note or invoice in the case of non-delivery.


5. ACCEPTANCE


a) The Purchaser shall inspect all Goods immediately upon delivery to ensure the quantity is as specified on the delivery note and that the packaging shows no sign of interference or damageThe Purchaser shall within 7 days from delivery notify the Sellers of any matter or thing by reason of which they may allege that the Goods are not in accordance with the Contract. If the Purchasers shall fail to give such notice within such period or if the Purchasers shall commence any alteration process operation or treatment of any kind upon the Goods it shall conclusively be deemed that the Goods are as to quantity and in all respect in accordance with the contract and any terms which may be implied into the contract and that the Purchasers have accepted them and the Purchasers shall have no right to reject the Goods but shall be bound to pay for the same. Provided that the Goods materially comply with specification, the Purchasers shall be bound to accept and pay for the Goods.


6. PURCHASERS’ OBLIGATION


a) The Purchasers shall ensure that the order and instruction supplied by them are complete, accurate and suitable for their purpose.

b) The Purchasers shall supply all relevant information that the Sellers request to enable the Sellers to discharge its obligations under the Contract.


7. RISK AND TITLE

 

b) The Goods shall remain the sole and absolute property of the Sellers as legal and equitable owners until the Purchasers have paid the Sellers in full for      (i) all of the Goods to be provided .under the Contract and (ii) all other sums which are or which become due to the Sellers from the Purchasers on any account.

 

c) The Purchasers grant the Sellers, its employees and agents an irrevocable licence to enter upon the Purchasers’ premises for the purposes of repossession of the Goods where the Purchasers’ right to possession has terminated. Where the Sellers are unable to determine whether the Goods are the goods in respect of which the Purchasers’ right to possession has terminated, the Seller shall be deemed to have sold all goods of the kind sold by the Sellers to the Purchasers in the order in which they were invoiced to the Buyer.

 

d) Until ownership of the Goods has passed to the Purchasers the Purchasers shall:

(i)hold the Goods on a fiduciary basis as the Sellers’ bailee;
(i)
(iii)not destroy, deface or obscure any identifying mark or packing on or relating to the Goods; and
(iii)(ii)
(iv)(iii)maintain the Goods in satisfactory condition and keep them insured on the Sellers’ behalf for their full price against all risk to the reasonable satisfaction of the Sellers. On request the Purchasers shall produce the policy of insurance to the Company.

e) The Purchasers right to possession of the Goods shall terminate immediately in the event that any of the events in clause 4b occur or the Sellers believe such events may occur in the near future.

 

g) On termination of the Contract, howsoever caused, the Sellers’ rights contained in this condition 7 shall remain in effect.

 

 

 

 

a) Every effort is made to ensure the products conform to specification. The Sellers at their discretion may be prepared to rectify or replace such material at the place of delivery and in the condition originally specified, or if rectification or replacement is not practicable. May credit the value of the goods at the invoice price if required in writing to do so, provided that the claim is made and admitted and the material is returned within 3 months from the date of invoice. The Sellers liability in respect of or consequent upon any such defect whether in original or replaced material or workmanship is limited as aforesaid and does not extend in any circumstances to cover any other expenditure incurred nor any consequential loss or profit. Further, any liability on the Sellers under this sub clause is conditional upon the Purchasers having:

 

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i) complied with their obligations hereunder and in particular have made payment in full for the Goods.

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ii) not carried out any repair, alteration, process, operation or treatment of the Goods.

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iii) notified the sellers in writing of such defect or fault within a period of 3 months from the date of delivery;

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iv) not used the Goods or allowed the Goods to be used in a way that does not comply with any instructions issued by the Sellers; and

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v)

ceased use of the Goods upon becoming aware of the alleged defect.

 

b) Subject to the foregoing provisions of this Clause the Sellers shall have no liability to the Purchasers for any damage to the Goods (including loss or damage in transit or non delivery) or other property or any other loss damage delay or liability whatsoever (including consequential loss or damage) arising from any act neglect or default of the Sellers or the Sellers’ employees or independent contractors or howsoever arising or caused.

 

c) Nothing in these General Conditions shall exclude or limit the liability of the Sellers for death or personal injury caused by the Seller’s negligence or that of its employees or for fraudulent misrepresentation.

 

d) The Sellers shall not be liable to the Purchasers for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

 

e) Subject to clauses 8 (c) and 8 (d) the Sellers’ total 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 set out on the acknowledgement of order.

 

f) The Purchasers shall fully and effectively indemnify the Sellers and shall keep the Sellers fully and effectively indemnified and hold the Sellers harmless from and against any and all losses, claims, damages, costs (including legal fees), charges, expenses, liabilities, demands, proceedings and actions which the Sellers may sustain or incur or which may be brought or established against Sellers by any person or which in any case arises out of or in relation to all claims, actions or proceedings brought against the Sellers or the Sellers’ employees in relation to the Goods or in any way connected herewith whether such claim action or legal are taken under the Consumer Protection Act 1987 or arising from or as a result of the negligence of the Sellers or the Sellers’ employees or independent contractors or howsoever arising or caused.

 

g) The Purchasers shall be responsible for the Goods being suitable in every way for the purpose for which they intend to use them

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h) The Purchasers should insure against any risk not accepted by the Sellers hereunder and particularly ensure that such policy covers any additional value in excess of that referred to in sub-clause (e) hereof.

 

i) The Sellers’ prices are based on the assumption that their liabilities are as set out in this clause and the assurance given in sub-clause (b) hereof is not assignable and together with the other liabilities accepted hereunder is given in lieu of and to the express exclusion of all other guarantees conditions warranties and other terms implied by statute or common law (save for those conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

 

j) The delivery of parts does not transfer to the Purchaser any rights of ownership belonging to the Seller on its manufacturing studies, software, any research and patents. As a consequence, the Purchaser promises to keep the confidentiality of all kind of information, written or not, such as industrial drawings, outlines, technical instructions that the Seller will bring to his knowledge. In no instance may the purchaser use Seller’s studies for his own purposes, nor divulge them without first having expressly obtained ownership of them.

 

 

 

 

Failure by the Sellers at any time to enforce any of the provisions of these General conditions shall not be construed as waiver by the Sellers of such provisions or in any way affect the validity of these General Conditions.

 

 

 

 

a) This contract may not be assigned or transferred by the Purchasers without prior written consent of the Sellers.

 

b) The Sellers may sub-contract any of their obligations under the Contract.

 

 

 

 

Any notice required to be served hereunder may be served by post, fax or e-mail to the registered office or principal place of business of the party to be served. Notice shall be deemed to have been given if sent by post, 2 days after posting, if sent by fax or e-mail, upon transmission provided proof of successful transmission can be produced.

 

 

 

 

Headings are for ease of reference only and do not form a part of these General Conditions nor shall they govern the interpretation thereof.

 

 

 

 

If any term or conditions contained herein is in whole or in part held to any extent to be illegal unenforceable or void under any enactment or rule of law that term or condition will to that extent be deemed not to form part of these terms and conditions and the remainder of the terms and conditions will not be affected.

 

 

 

 

Except where expressly stated to the contrary, no provision of the Contract is intended to or creates any right or benefit enforceable against the parties to the Contract by any person who is not a party under the Contracts (Rights of Third Parties) Act 1999.

 

 

 

 

(a) Neither party to the Contract shall be liable for any delay in performing obligations or for failure to perform obligations (other than any obligation to make payment) if the delay or failure results from circumstances beyond its control (whether happening in the United Kingdom, Italy or elsewhere) including, but not limited to, force majeure, Act of God, refusal of licence(s), act of government, act of terrorism, fire, flood, earthquake, war, explosion, accident, criminal act, civil commotion, industrial dispute, delays in transportation, impossibility of obtaining information or any other cause outside such party’s control. Once such circumstances have ceased to delay or prevent performance, the party concerned shall resume performance of its obligations as soon as reasonably possible.

 

(b) If either party to the Contract is prevented from performance of its obligations in accordance with clause 18(a) for a continuous period in excess of three months, the non-defaulting party may terminate the Contract forthwith by notice effective immediately, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue.

 

 

 

 

These General Conditions and any Contract to which they apply and the interpretation thereof shall be governed in all respects by English law and the parties to the Contract irrevocably submit to the jurisdiction of the English courts. The money of account shall be sterling.