Lec Medical – Terms and Conditions of Sale and Supply
In these Conditions, unless the context requires otherwise:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Buyer” means the company, firm, body or person purchasing the Goods from Lec Medical.
“Conditions” means the terms and conditions set out in this document from the section starting ‘Definitions’ to condition 9.
“Connected Goods” has the meaning given to that term in the Special Terms.
“Contract” means a contract between Lec Medical and the Buyer for the sale and purchase of the Goods in accordance with these Conditions and the Order and, where applicable, the supply of the Evaluation Services in accordance with the Special Terms.
“Delivery Location” has the meaning set out in condition 5.1.
“Documentation” means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Goods.
“Evaluation Services” has the meaning given to that term in the Special Terms.
“Force Majeure” an event or sequence of events beyond Lec Medical’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Lec Medical’s or its suppliers’ workforce, pandemic and epidemic.
“Goods” means the goods which are the subject matter of the Order.
“Insolvency Event” has the meaning set out in condition 3.4.
“Lec Medical” means Glen Dimplex Home Appliances Limited (company no. 02692306) whose registered office is at Stoney Lane, Prescot, Merseyside L35 2XW.
“Order” means an order in respect of the Goods issued by the Buyer to Lec Medical and, where applicable, in respect of the supply of the Evaluation Services.
“Specification” means the description or Documentation provided for the Goods set out or referred to in the Contract.
“Special Terms” means the additional terms set out in the Annex to these Conditions which will apply in addition to these Conditions if Lec Medical provide Connected Goods and Evaluation Services to the Buyer as part of the Contract.
“Warranty Period” has the meaning set out in condition 6.2.
In the Contract, unless the context requires otherwise:
a. a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
b. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
c. a reference to a party includes that party’s personal representatives, successors and permitted assigns;
d. a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
e. words in the singular include the plural and vice versa;
f. any clause, condition, paragraph or other headings in these Conditions and the Special Terms are included for convenience only and shall have no effect on the interpretation of the Contract; and
g. reference to writing or written includes faxes and emails.
1. BASIS OF CONTRACT
1.1 These Conditions and, where applicable, the Special Terms apply to and form part of the Contract between Lec Medical and the Buyer. They supersede any previously issued terms and conditions of purchase or supply.
1.2 The Buyer’s Order (in whatever manner communicated) to Lec Medical is an offer to enter into a Contract upon these Conditions and, where applicable, the Special Terms. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
1.3 Lec Medical may accept or reject an Order at its discretion. Acceptance occurs and a Contract is formed only when Lec Medical accepts the Order by issuing a written acceptance of the Order to the Buyer.
1.4 These Conditions and, where applicable, the Special Terms apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.5 All terms and conditions appearing or referred to in the Order or otherwise stipulated by the Buyer at any time shall have no effect and the Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions and, where applicable, the Special Terms.
1.6 Any variation of these Conditions or to an Order or to the Contract and, where applicable, the Special Terms must be confirmed in writing by a duly authorised signatory on behalf of Lec Medical.
1.7 Lec Medical’s quotations are not binding on Lec Medical. Quotations are invitations to treat only. Where Goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.
1.8 Marketing and other promotional material relating to the Goods and, where applicable, the Evaluation Services are illustrative only and do not form part of the Contract.
2. PRICE AND TERMS OF PAYMENT
2.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted in the Order, the price set out in Lec Medical’s published price list in force from time to time as at the date of the Order.
2.2 Lec Medical reserves the right to amend prices quoted on its price list at any time. The price payable for the Goods shall be the price as published in the price list at the time when the Buyer’s Order is made. Subject to clause 2.4, changes to the prices quoted on Lec Medical’s price list will not affect any Buyer’s Order that has already been made.
2.3 There shall be added to the price for the Goods any value added tax and any other tax or duty thereon.
2.4 In respect of all Orders already made, Lec Medical may also, by giving notice to the Buyer at any time up to 2 Business Days before delivery, immediately increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a) any factor beyond Lec Medical’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
c) any delay caused by any instructions of the Buyer or failure of the Buyer to give Lec Medical adequate or accurate information or instructions.
2.5 The price of the Goods excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
2.6 Unless otherwise agreed between the parties, Lec Medical shall invoice for the Goods, at any time following acceptance of the Order.
2.7 Subject to credit being approved by Lec Medical, accounts are due for payment as shown on the face of the invoice. Otherwise payment must be received in cleared funds by Lec Medical before delivery of the Goods.
2.8 Payment shall be made to the bank account nominated in writing by Lec Medical. Time for payment shall be of the essence.
2.9 If the Buyer does not pay upon the date when payment is due Lec Medical shall be entitled, without limiting its other rights, to charge interest on the amount outstanding from the due date for payment until actual payment in full, whether after and before judgment, at the rate of 3% a year above the base rate of National Westminster Bank Plc. In the alternative, Lec Medical reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
2.10 The Buyer shall pay all amounts due under the Contract in the currency specified in Lec Medical’s invoice and in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Lec Medical may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Lec Medical to the Buyer.
2.11 Lec Medical may set and vary credit limits from time to time and withhold all further supplies if the Buyer exceed such credit limit. Where credit has been approved, Lec Medical may reduce the number of days the Buyer has to pay each invoice if: (a) the Buyer issues a profit warning; (b) any credit reference agency reduces the Buyer’s credit rating; or (c) Lec Medical otherwise consider the Buyer will be unable to pay its invoices (whether partially or fully).
3. TITLE AND RISK
3.1 The Goods are at the risk of the Buyer from the earlier of: a) the time of collection by Buyer or the Buyer’s representative; or b) the time of delivery and at the point the Goods are first made available for unloading at the Customer’s nominated delivery point.
3.2 Title to Goods shall remain with Lec Medical until payment in full (in cash or cleared funds) has been received by Lec Medical for those Goods and of any other monies due from the Buyer to Lec Medical on any account. Lec Medical shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Lec Medical. Lec Medical may, at any time, appropriate sums received from the Buyer as its thinks fit notwithstanding any purported appropriation by the Buyer.
3.3 Until title to the Goods passes to the Buyer under condition 3.2, the Buyer shall: (a) hold the Goods on as Lec Medical’s bailee; (b) store the Goods separately and readily identifiable as the property of Lec Medical; (c) not destroy, deface or obscure any identifying mark on or in relation to the Goods; (d) not attach the Goods to real property without Lec Medical’s consent; (e) maintain the Goods in satisfactory condition; and (f) keep the Goods insured on Lec Medical’s behalf with a reputable insurer for an amount at least equal to their full price against all risks to the reasonable satisfaction of Lec Medical.
3.4 Notwithstanding condition 3.2, the Buyer may use or resell the Goods before ownership has passed in the ordinary course of its business until such time as it becomes aware or ought reasonably to become aware that any Insolvency Event has occurred or is likely to occur. In respect of any sale by the Buyer, this right is granted solely on the condition that the sale shall be effected at arm’s length and any such sale shall be a sale of Lec Medical’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale. “Insolvency Event” means the Buyer: (a) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so; (b) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Lec Medical reasonably believes that to be the case; (c) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986; (d) becomes subject to a moratorium under Part A1 of the Insolvency Act 1986; (e) becomes subject to a restructuring plan under Part 26A of the Companies Act 2006; (f) becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006; (g) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; (h) has a resolution passed for its winding up; (i) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; (j) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced; (k) has a freezing order made against it; (l) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; (m) is subject to any events or circumstances analogous to those in conditions 3.4(a) to 3.4(l) in any jurisdiction; or (n) takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in conditions 3.4(a) to 3.4(m) including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
3.5 The Buyer’s right to possession of the Goods shall terminate immediately if, at any time before title to the Goods has passed to the Buyer, the Buyer become subject to any Insolvency Event.
3.6 The Buyer grants and, where necessary, shall procure the grant to, Lec Medical, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
3.7 At any time before title to the Goods passes to the Buyer (whether or not any payment to Lec Medical is then overdue or the Buyer is otherwise in breach of any obligation to Lec Medical) Lec Medical may (without prejudice to any other of its rights) retake possession of all or any part of the Goods or require delivery up to it of all or part of the Goods.
No cancellation of any Order from the Buyer can be accepted without prior written agreement of Lec Medical and if Lec Medical provides written agreement to cancellation any and all costs and expenses incurred by Lec Medical in cancelling the Contract shall be paid by the Buyer to Lec Medical on demand.
5.1 Lec Medical shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after Lec Medical notifies the Buyer that the Goods are ready.
5.2 Delivery shall be deemed completed only:
a) on the successful completion of the unloading of the Goods at the Delivery Location by Lec Medical or its nominated carrier (as the case may be); and
b) once the Goods have been signed for by an authorised representative of the Buyer at the Delivery Location.
5.3 Dates for delivery of the Goods are approximate only and time of delivery is not of the essence. Whilst Lec Medical will use reasonable endeavours to keep any stated dispatch or delivery date it will not be liable in any circumstances for the consequences of any delay in delivery.
5.4 Lec Medical shall not be liable for delay in delivery or failure to make delivery of any Goods due to: (a) any Force Majeure Event; (b) the Buyer’s failure to provide Lec Medical with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods; or (c) the Buyer’s failure to make the Delivery Location available.
5.5 Any liability of Lec Medical for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.6 Notification of non-delivery of any Goods must be made to Lec Medical within seven days of the date of dispatch and any complaints relating to defects which would be immediately apparent on inspection must be lodged with Lec Medical in writing within three days of receipt of the Goods.
5.7 Where the Goods are to be delivered in instalments (as agreed between the parties), each delivery shall constitute a separate Contract and failure by Lec Medical 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 instalment shall not entitle the Buyer to cancel any other instalment.
5.8 If the Buyer fails to accept delivery of the Goods, Lec Medical shall store and insure the Goods pending delivery, and the Buyer shall pay all storage and insurance charges at Lec Medical’s then-applicable rates.
6. WARRANTY & LIABILITY
6.1 If Lec Medical is asked for advice as to the suitability of any Goods such advice will be given by Lec Medical or its officers in good faith. Such advice is only given on the express condition that Lec Medical is exempt, to the fullest extent permitted by applicable law, from liability and any and all losses resulting directly or indirectly from such advice.
6.2 Lec Medical warrants that the Goods shall:
(a) in respect of Goods that are first installed in the United Kingdom (excluding the Highlands, Islands of Scotland, Isle of Wight and Isle of Mann), from delivery and for the warranty period applicable to the Goods specified in the Documentation; or
(b) in respect of Goods that are first installed in the Highlands, Islands of Scotland, Isle of Wight, Isle of Mann or otherwise outside the United Kingdom, for a period of two years from delivery,
in each case, the “Warranty Period”:
(c) conform in all material respects to the Order and the Specification: and
(d) be free from material defects in design, material and workmanship.
6.3 Subject to the other terms in this condition 6 and the Contract generally, if within the Warranty Period, as the Buyer’s sole and exclusive remedy, Lec Medical shall:
(a) in respect of Goods that are first installed in the United Kingdom (excluding the Highlands, Islands of Scotland, Isle of Wight and Isle of Mann) at its option, repair or replace any Goods that are accepted by Lec Medical as not complying with condition 6.2; and
(b) in respect of Goods that are first installed in the Highlands, Islands of Scotland, Isle of Wight, Isle of Mann or otherwise outside the United Kingdom, Lec Medical shall provide replacement parts for any Goods that are accepted by Lec Medical as not complying with condition 6.2 (however it is the Buyer’s responsibility to ensure a suitably qualified representative attends to carry out the repair and fit the replacement parts supplied by Lec Medical. Lec Medical will not cover the costs or expenses of said representative),
in each case, provided that the Buyer:
(c) services a written notice on Lec Medical during the Warranty Period within 14 days after discovery of the relevant defect which was not apparent during a physical inspection in accordance with condition 5.6;
(d) provides Lec Medical with sufficient information as to the nature and extent of the defects and the uses to which the Goods have been put prior to the defect arising including details on: (i) the product code for the defective Goods; (ii) the serial number of the defective Goods; (iii) a copy of the original invoice or delivery note relating to the defective Goods; and (iv) the address and location of the defective Goods;
(e) at the Buyer’s own expense and risk returns the defective Goods or relevant parts of the Goods to Lec Medical or (at Lec Medical’s sole option) permits Lec Medical to collect the same, in each case, as requested by Lec Medical; and
(f) at Lec Medical’s request, gives Lec Medical a reasonable opportunity to examine and inspect the defective Goods or relevant parts of the Goods.
6.4 In the event that any customer of the Buyer submits a claim (other than the return of defective Goods as referred to above) relating to Goods supplied by Lec Medical, the Buyer shall forthwith notify Lec Medical of such claim promptly and shall not settle such claim without prior reference of the matter and agreement of such settlement by Lec Medical.
6.5 The warranty in condition 6.2 does not apply to Goods or parts of Goods that are deemed consumable by Lec Medical including, but not exclusively to, the following list (for a full list please visit the Lec Medical website): batteries, light bulbs, light tubes and fuses. Items covered by the warranty in condition 6.2 include defective door seals/gaskets, door handles, locks and keys, feet, wheels or castors, shelves and supports, drawer fronts or compartment flaps, power leads and plugs.
6.6 Lec Medical shall not be liable for the Goods’ failure to comply with the warranty set out in condition 6.2 in any of the following events:
(a) any further use is made of such Goods after notice is given in accordance with conditions 5.6 or 6.3;
(b) a failure to follow Lec Medical’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same has not been followed;
(c) the Goods having been altered or repaired without the prior written consent of Lec Medical (including any adjustment of parameter settings which are only accessible through a maintenance programme) or, having received such consent, not in accordance with Lec Medical’s instructions;
(d) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, misuse, inadequate cleaning, accidental damage, modification, incorrect or failed services to the Goods; or
(e) parts having been used which are not manufactured or supplied by Lec Medical.
6.7 These Conditions shall apply to any repair or replacement Goods or relevant parts supplied by Lec Medical with effect from delivery of the repaired or replaced Goods or relevant parts.
6.8 Installation or disconnection is not covered by the warranty in condition 6.2.
6.9If the Goods are damaged outside of 72 hours of delivery, Lec Medical will consider the damage as the Buyer’s responsibility. Lec Medical may offer a repair or replacement. Lec Medical reserves the right to charge for such replacement or repair and any associated inspection.
6.10 Lec Medical reserves the right to charge the Buyer, if the Goods are subsequently found not to be faulty, or any fault present falls outside the scope of the warranty in condition 6.2 as a result of one or more of the exclusions listed above in this condition 6. Charges will be made at Lec Medical’s normal service rates and any other associated costs incurred by Lec Medical in respect of inspection and subsequent repair, replacement or disposal of Goods (or relevant parts) that falls outside the scope of the warranty in condition 6.2.
6.11 If no fault is found or the fault is intermittent and not witnessed by a Lec Medical engineer, and the Buyer still wishes to have the Goods replaced or repaired, Lec Medical reserves the right to charge for the replacement or repair.
6.12 All warranties, conditions and other terms whether express or implied by statute, common law or otherwise, save for Lec Medical’s liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 12 of the Sale of Goods Act 1979,
are, to the fullest extent permitted by law, excluded from the Contract.
6.13 Subject to condition 6.12, Lec Medical’s 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 Contract price.
6.14 Subject to condition 6.12, Lec Medical shall not be liable for any: (a) consequential, indirect or special losses; or (b) whether direct or indirect: (i) pure economic loss; (ii) loss of profit; (iii) loss of business; (iv) harm to reputation or depletion of goodwill; (v) loss of data; (vi) loss of use; (vii) loss of contract; (viii) loss of opportunity; or (ix) loss of production, in each case, 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 (including, any loss of or damage to vaccines and/or medicines).
6.15 A claim in respect of any Order or any part of it shall not entitle the Buyer to cancel or refuse delivery or instalment of or payment for any other Order, or delivery or instalment of or payment for any part of the same Order.
7. HEALTH AND SAFETY AND THE ENVIRONMENT
7.1 All Goods are supplied by Lec Medical to the Buyer with appropriate safety, operating and fitting instructions relating to the fitting and installation of Goods. Certain Goods are supplied accompanied by written recommendation from Lec Medical that they should only be fitted or installed by expert and skilled workers and it shall be the responsibility of the Buyer to ensure that where Goods are sold on to a third party they are accompanied by all appropriate safety and fitting instructions.
7.2 Where the Buyer fits and install the Goods itself it shall ensure that the contents of all the safety, operating and fitting instructions are specifically drawn to the attention of its employees and contractors.
7.3 The Buyer hereby undertakes to take such measures as:
(a) are communicated in writing to the Buyer by Lec Medical; and/or
(b) are sufficient to ensure, so far as is reasonably practicable,
that the Goods will at all times be safe and without risk to health and/or the physical environment when properly used. In this regard the Buyer accepts that the Goods shall not be regarded as properly used when they are used without regard to any relevant information or advice relating to their use which is communicated to the Buyer by Lec Medical.
7.4 To the fullest extent permitted by applicable law, the Buyer shall indemnify and keep indemnified Lec Medical in respect of all claims, actions, proceedings, costs, expenses, loss or damage (whether direct, indirect, economic or consequential) including without prejudice to the generality hereof any monetary penalty or fine in respect of or in connection with the Goods arising out of any one or more of the following:
(a) under the Health and Safety at Work Act 1974 as amended or any regulations orders or directions made thereunder or any applicable equivalent legislation applicable outside the UK;
(b) resulting from any breach of the Buyer’s obligations under the Contract (including this condition 7);
(c) under the Consumer Protection Act 1987 or any statutory replacement thereof or any applicable equivalent legislation applicable outside the UK in respect of Goods which were not defective at the time when they were delivered to the Buyer;
(d) the Pollution Prevention and Control Act 1999 as amended or any regulations orders or directions made thereunder or any applicable equivalent legislation applicable outside the UK . In this regard the Buyer should take note that there are restrictions on the disposal of electrical products or products containing compressed gases in most jurisdictions; and
(e) any breach by the Buyer of any other applicable laws, legislation, statutory instruments, regulations and governmental guidance.
8.1 If: (a) any Insolvency Event occurs in respect of the Buyer; or (b) if the Buyer commits any breach of any part of the Contract (or any other contract which Lec Medical has with the Buyer), Lec Medical may, without prejudice to its rights and remedies under the Contract, stop all Goods in transit and suspend further deliveries and, by notice to the Buyer, Lec Medical may terminate the Contract immediately.
8.2 On termination of the Contract for any reason the Buyer shall immediately pay to the Customer all of Lec Medical’s outstanding unpaid invoices and interest.
8.3 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9.1 All technical data is subject to modification or correction by Lec Medical without notice. Typographical and clerical errors in any material or sales documentation issued or published by Lec Medical are subject to correction.
9.2 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
9.3. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected. If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
9.4 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
9.5 A person who is not party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract. This condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
9.6 The rights and remedies provided in the Contract for Lec Medical only are cumulative and not exclusive of any rights and remedies provided by law.
9.7 The Buyer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Lec Medical’s prior written consent.
9.8 The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
9.9 If there is a conflict between the terms contained in the Conditions and the Special Terms, the terms of the Special Terms shall prevail to the extent of the conflict.
9.10 Lec Medical shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure.
9.11 The Contract between Lec Medical and the Buyer shall be governed in all respects under the provisions of English Law. Where the Buyer is located:
(a) in the United Kingdom, the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims); or
(b) outside the United Kingdom, the parties agree all disputes arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, its subject matter, negotiation or formation (whether contractual or non-contractual in nature) shall be referred to and finally resolved by arbitration in accordance with the rules from time to time in force of the London Court of International Arbitration which rules are deemed to be incorporated by reference into this condition and: (i) the arbitration shall be conducted by a sole arbitrator to be agreed between the parties, or in default of agreement appointed by the President of the London Court of International Arbitration or any person to whom the said President has from time to time delegated his power to make such appointments; (ii) the seat or legal place of the arbitration shall be in London, England; and (iii) the language to be used in the arbitration shall be English.
9.11 To the extent permitted by law:
(a) the Convention on the International Sale of Goods 1980 and all international and domestic legislative (or other) implementations of that Convention; and
(b) the Uniform Laws on International Sales Act 1967,
shall not apply in relation to the Contract.
Annex – Special Terms – LEC Connect
1.1 Words that are capitalised but have not been defined in these Special Terms have the meanings given to them in the Conditions. In addition to those earlier defined terms, capitalised terms in these Special Terms will have the meanings prescribed to them in these Special Terms (and in the case of conflict between the defined terms in these Special Terms and the defined terms in the Conditions, the defined terms in these Special Terms will take precedence for the purposes of these Special Terms).
1.2 In case of any conflict between any of the terms in these Special Terms and the Conditions, the terms of these Special terms will take priority.
2. Evaluation Services
2.1 These Special Terms govern the testing, demonstration, trial and other evaluative use of the Lec Connect platform on a software-as-a service basis (“Lec Connect”) and the associated app made available by Lec Medical (“App”) for use in connection with the Goods supplied by Lec Medical to the Buyer that interface with Lec Connect and the App (“Connected Goods”). The supply by Lec Medical of Lec Connect and the App under these Special Terms and any associated services provided by Lec Medical to the Buyer shall be referred to as the “Evaluation Services”. Lec Medical supply the Evaluation Services and any associated Connected Goods detailed in the Buyer’s Order relating to the Evaluation Services (the “Trial Connected Goods”) for the sole purpose of the Buyer’s own internal evaluation of the Evaluation Services and those Trial Connected Goods in a non-productive capacity and not for any commercial or other business or operational purposes (the “Evaluation Purpose”). Lec Medical will not charge the Buyer for use of the Evaluation Services during the Evaluation Period or the supply of the Trial Connected Goods in accordance with these Special Terms.
2.2 Subject to the terms of these Special Terms, Lec Medical grants the Buyer a non-exclusive, non-transferable, non-assignable, non-sub-licensable, revocable, limited and personal right to use the Evaluation Services in the jurisdiction in which the Buyer is located for the Evaluation Purpose for a period of 12 months from the date Lec Medical notifies the Buyer of the commencement of the Evaluation Services (the “Evaluation Period”).
2.3 The Buyer shall not, and shall not attempt to, (except as expressly permitted under these Special Terms):
2.3.1 copy, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, alter, edit, abstract, store, archive, display publicly or to third parties, sell, license, lease, rent, assign, transfer, disclose (in each case whether or not for charge) or in any way commercially exploit any part of any Evaluation Services;
2.3.2 permit any (direct or indirect) use of the Evaluation Services (or any part) in any manner by any third party;
2.3.3 create derivative works or improvements based on:
184.108.40.206 any software or applications used by or on behalf of Lec Medical to provide the Evaluation Services (collectively the “Applications”); or
220.127.116.11 the Evaluation Services (or any part);
2.3.4 permit any Evaluation Services or Application(s) (or any part) to become incorporated into any other program or service or to be combined or merged with any other program;
2.3.5 attempt to reverse engineer, observe, study or test the functioning of, decompile or otherwise derive or access the source code of the Applications;
2.3.6 remove, alter, obscure, translate, combine, supplement or change any trademarks, terms, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to the Evaluation Services;
2.3.7 use the Evaluation Services or the Trial Connected Goods (or any part) for any purpose other than the Evaluation Purpose;
2.3.8 release, publish or make available any results of its evaluation of the Evaluation Services or the Trial Connected Goods (including, but not limited to, any data concerning availability, functionality or performance) publicly or to any third party;
2.3.9 use the Evaluation Services (directly or indirectly) for any purpose or in any manner that:
18.104.22.168 is unlawful under any applicable law;
22.214.171.124 is in breach of these Special Terms;
126.96.36.199 disrupts, disables, interferes with or otherwise impedes in any manner the operation of the Evaluation Services (in whole or in part) or the operations, business or systems of any person or entity;
188.8.131.52 infringes any Intellectual Property Rights (as defined in paragraph 4);
2.3.10 use the Evaluation Services (directly or indirectly) to store, transmit or process in any manner any Buyer Data (as defined in paragraph 7) that:
184.108.40.206 is unlawful, obscene, indecent, threatening, harassing, racially or ethnically offensive, libellous or defamatory; or
220.127.116.11 contains any virus, disabling code or malicious software (including, but not limited to, malware, trojan horses, ransomware and spyware),
provided that nothing in these Special Terms excludes any right of the Buyer under mandatory applicable law to the extent it cannot be excluded or limited by agreement of the parties.
2.4 The Buyer may allow its employees and contractors (“Authorised Users”) to use the Evaluation Services and the Trial Connected Goods on the Buyer’s behalf and solely for the benefit of the Buyer. The Buyer shall ensure that only Authorised Users use the Evaluation Services and the Trial Connected Goods and that such use is at all times in accordance with these Special Terms. The Buyer shall be liable for the acts and omissions of the Authorised Users as if they were its own. Any obligation on the Buyer to do, or to refrain from doing, any act or thing under these Special Terms shall include an obligation upon the Buyer to procure that all Authorised Users also do, or refrain from doing, such act or thing.
2.5 The Buyer acknowledges that use of the Evaluation Services and the Trial Connected Goods is at all times subject to the Buyer’s compliance with the requirements identified in these Special Terms and/or as Lec Medical otherwise makes available to the Buyer from time to time (including, without limitation, all minimum system, browser and device requirements identified by Lec Medical relating to the Evaluation Services).
2.6 The Buyer shall indemnify, keep indemnified and hold harmless Lec Medical from and against any losses, claims, damages, liability, costs (including, without limitation, all legal and other professional fees) and expenses incurred by Lec Medical as a result of any of the following:
2.6.1 the Buyer’s breach of these Special Terms; and
2.6.2 any allegation, demand or claim by any third party (regardless of its merit) of any circumstances that would (if proven) constitute a breach of these Special Terms.
3.1 Notwithstanding any conflicting terms in the Conditions, the Buyer acknowledges that the Evaluation Services, any Applications and the Trial Connected Goods made available to the Buyer under or in connection with these Special Terms are provided on a ‘as is’ and ‘as available’ basis and without warranty or other obligation, whether express or implied, to the maximum extent permitted by applicable law. For the avoidance of doubt, the warranty in condition 6.2 of the Conditions shall not apply to the Trial Connected Goods.
3.2 The Buyer acknowledges that Lec Medical has no obligation (howsoever arising, whether under contract, tort, in negligence or otherwise) to ensure that the Evaluation Services or the Trial Connected Goods are:
3.2.1 uninterrupted or error free;
3.2.2 available, up-to-date or maintained;
3.2.3 compatible or operate correctly with any particular software, hardware or other systems;
3.2.4 secure; or
3.2.5 meet the Buyer’s needs (whether or not such needs have been communicated to Lec Medical).
3.3 Lec Medical may notify the Buyer in advance of scheduled maintenance of the Evaluation Services but the Buyer acknowledges that it may receive no advance notification for downtime of the Evaluation Services caused by emergency or other maintenance or for any other reason.
3.4 Subject to condition 6.12 of the Conditions, all warranties, conditions, terms, undertakings or obligations whether express or implied and including, without limitation, any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result in connection with the Evaluation Services and the Trial Connected Goods are excluded to the fullest extent allowed by applicable law.
4. Intellectual Property Rights
4.1 In these Special Terms “Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights, domain names and all similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; and wherever existing.
4.2 All Intellectual Property Rights in and to the Evaluation Services (including, among other things, in all associated documentation, Applications and data other than Buyer Data (see paragraph 7)) and the Trial Connected Goods belong to and shall remain vested in Lec Medical or the relevant third party owner. The Buyer shall execute all such documents and do such things as Lec Medical may consider necessary to give effect to the ownership of Intellectual Property Rights in accordance with these Special Terms.
Lec Medical may use any feedback and suggestions for improvements or changes relating to the Evaluation Services (or other services) and/or the Trial Connected Goods provided by or on behalf of the Buyer or by any Authorised User (collectively, “Feedback”) for any purpose without charge or limitation. The Buyer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights), and with the waiver of all moral rights, to Lec Medical at the time such Feedback is first provided to Lec Medical.
Lec Medical may monitor, collect, store and use any information in, about or relating to the Evaluation Services, the Buyer Data (see paragraph 7) (including, without limitation, information on their performance and use) and/or the Trial Connected Goods to monitor for or detect breaches of these Special Terms or errors and for the maintenance, development and improvement of Lec Medical’s services and/or the Connected Goods.
7. Buyer Data
7.1 The Evaluation Services may permit the Buyer to input certain data (“Buyer Data”). The Buyer acknowledges and agrees that:
7.1.1 the Evaluation Services are not designed or intended for use with production data, business data, confidential information, personal data or any other data which may have value or pose any risk to the Buyer; and
7.1.2 Lec Medical accepts no obligation (howsoever arising, whether under contract, tort, in negligence or otherwise) that the Buyer Data will be kept confidential or secure or free from loss, damage, destruction, corruption or unauthorised access or disclosure.
7.2 Subject to paragraphs 4 and 5, Buyer Data shall at all times remain the property of the Buyer or its licensors.
7.3 The Buyer:
7.3.1 shall ensure that the Buyer Data does not include any personal data (as defined by applicable data protection and privacy laws) or data that is confidential or needs to be kept secure, confidential or free from loss, damage, destruction, corruption or unauthorised access or disclosure;
7.3.2 shall ensure that the Buyer Data does not include any data subject to any export control laws of the United Kingdom, the European Union or any of its member states or any other jurisdiction;
7.3.3 shall ensure all necessary licences, approvals and consents have been given as required for the Buyer Data’s hosting, use, processing and other utilisation in connection with the Evaluation Services and/or the Trial Connected Goods in compliance with all laws and all third party Intellectual Property Rights; and
7.3.4 hereby grants Lec Medical (and each of its direct and indirect sub-contractors) a royalty-free, non-exclusive, sub-licensable (including by multi-tier) licence to use, copy and other otherwise utilise all Buyer Data to the extent necessary to provide the Evaluation Services, the Trial Connected Goods or otherwise to exercise Lec Medical’s rights under these Special Terms.
7.4 The Buyer agrees that:
7.4.1 it shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Buyer Data;
7.4.2 Lec Medical shall have the right to permanently delete or otherwise remove, delete or suspend access to any Buyer Data and/or disclose Buyer Data to law enforcement authorities at any time (in each case without the need to consult the Buyer);
7.4.3 Lec Medical is not required to store or retain any Buyer Data during or after the Evaluation Period; and
7.4.4 Lec Medical shall not be obliged to provide the Buyer with any assistance in extracting, transferring or recovering any data whether during or after the Evaluation Period and the Buyer acknowledges and agrees that it is solely responsible for taking appropriate measures to back up and make any required copies of any Buyer Data and any other measures to provide or recover any Buyer Data.
8. Export laws
The Buyer shall comply with all applicable export control laws that apply to the Evaluation Services, the Buyer Data and/or the Trial Connected Goods. The Buyer shall not export, access, use, transmit, or re-export, directly or indirectly, separately or as a part of a system, the Evaluation Services, the Buyer Data (or any part) and/or the Trial Connected Goods in or to any country or territory for which an export licence or other approval is required under the laws of the United Kingdom, the European Union or any of its member states or any other jurisdiction, without first obtaining all necessary licences or other approvals.
9. Confidential information
9.1 In these Special Terms “Lec Medical’s Confidential Information” means: all information (whether in oral, written or electronic form) relating to Lec Medical’s business, technology, know-how or Intellectual Property Rights which may reasonably be considered to be confidential in nature; the manuals and user guides relating to the Evaluation Services; and all passwords and access details for the Evaluation Services.
9.2 The Buyer shall maintain the confidentiality of Lec Medical’s Confidential Information and shall not without the prior written consent of Lec Medical, disclose Lec Medical’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under these Special Terms.
9.3 The Buyer undertakes to: (a) disclose Lec Medical’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these Special Terms; (b)procure that such persons are made aware of and agree in writing to observe the obligations in this paragraph 9; and (c) be responsible for the acts and omissions of such persons as if they were the Buyer’s own acts or omissions.
9.4 The provisions of this paragraph 9 shall not apply to information which: (a) is or comes into the public domain through no fault of the Buyer, its officers, employees, agents or contractors; (b) is lawfully received by the Buyer from a third party free of any obligation of confidence at the time of its disclosure; (c) is independently developed by the Buyer, without access to or use of Lec Medical’s Confidential Information; or (d) is required by law, by court or governmental or regulatory order to be disclosed provided that the Buyer, where possible, notifies Lec Medical at the earliest opportunity before making any disclosure.
9.5 The Buyer’s obligations under this paragraph 9 shall continue in full force and effect during the term of these Special Terms and following expiry termination or expiry of these Special Terms.
10. AMENDMENTS TO THE CONDITIONS
10.1 In respect of the supply of the Evaluation Services and the Trial Connected Goods the parties hereby agree as follows:
10.1.1 the definition of “Buyer” shall be changed to “the company, firm, body or person that Lec Medical supplies the Evaluation Services and Trial Connected Goods”;
10.1.2 the warranty in condition 6.2 of the Conditions shall not apply to the Trial Connected Goods;
10.1.3 the phrase “shall be limited to the Contract price” in condition 6.13 of the Conditions shall be replaced with “£1000”;
10.1.4 the consideration received by the Buyer in entering the Contract shall be Lec Medical’s supply of the Trial Connected Goods and Evaluation Services to the Buyer; and
10.1.5 the consideration received by Lec Medical in entering the Contract shall be the provision of the Feedback by the Buyer and Authorised Users (and, to the extent such consideration is insufficient, the payment of £1 by the Buyer to Lec Medical (the receipt and sufficiency of which is acknowledged by Lec Medical)).
10.2 In condition 6.14 of the Conditions, the parties hereby agree that after ‘(ix) loss of production’ the following shall be added: ‘; (x) unauthorised access to or disclosure of Buyer Data; (xi) damage, destruction, loss of use or corruption of any data (including, without limitation, any Buyer Data); (xii) loss or corruption of software or systems; (xiii) loss or damage to equipment,’.
11. Term, suspension and termination
11.1 These Special Terms shall come into force on the commencement of the Evaluation Period and, unless terminated earlier in accordance with its terms, the Evaluation Services shall continue for the duration of the Evaluation Period after which the Evaluation Services shall automatically cease.
11.2 Lec Medical may immediately terminate these Special Terms or the provision of any of the Evaluation Services at any time for convenience by notice to the Buyer.
11.3 Lec Medical may suspend the provision of Evaluation Services (in whole or in part) at any time with or without notice.
11.4 Immediately on termination or expiry of these Special Terms (for any reason), the rights granted to the Buyer under these Special Terms shall terminate and the Buyer shall (and shall procure that each Authorised User shall) stop using the Evaluation Services. Following the termination or expiry of these Special Terms, the Buyer may retain the Trial Connected Goods (save that, if Lec Medical terminates the Contract under condition 8.1 of the Conditions, at Lec Medical’s request, the Buyer shall return the Trial Connected Goods to Lec Medical at the Buyer’s cost, expense and risk). If the Buyer requires access or use of Lec Connect or the App following the Evaluation Period or otherwise outside the Evaluation Services or the supply of any Connected Goods (other than the Trial Connected Goods), such access, use and supply shall be subject to separate terms and conditions agreed between the parties.
11.5 Termination or expiry of these Special Terms shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of these Special Terms that is expressly or by implication intended to continue beyond termination (including, without limitation, paragraphs 2.6, 4, 5 and 10).
To the maximum extent permitted by law, Lec Medical shall not be liable (under any legal theory, including, without limitation, negligence) for any breach, delay or default in the performance of these Special Terms to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by: any breach of these Special Terms by the Buyer; or any event or sequence of events beyond Lec Medical’s reasonable control preventing or delaying it from performing its obligations under these Special Terms (including, without limitation, any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet).
13.1 Lec Medical may update any part of these Special Terms or other documents referred to in it from time to time by notifying the Buyer. Such updates shall take effect 10 days after the Buyer is notified of the update). If the Buyer does not agree to any such update it should terminate these Special Terms before the update takes effect.
13.2 Lec Medical shall be entitled to modify the features and functionality of the Evaluation Services at any time but shall not be under any obligation to do so. Lec Medical has no obligation under these Special Terms to provide any maintenance, support or other technical services relating to the Evaluation Services, unless otherwise agreed by Lec Medical in writing.
14. APP STORES
14.1 If the Buyer or any Authorised Users download the App from a third-party app store (an “App Provider”), the Buyer acknowledges and agrees that:
14.1.1 these Special Terms form an agreement between Lec Medical and the Buyer, and not with the App Provider;
14.1.2 the App Provider has no obligation to provide any maintenance and support services with respect to the App; and
14.1.3 the App Provider is not responsible for addressing any claims the Buyer has relating to the App or the Buyer’s or any Authorised User’s possession and use of the App.