Terms and Conditions of Sale
“Custom Order” means any Order placed by the Customer that contains any item not ordinarily provided by Delsys or any modification to any item or part of an item normally provided by Delsys.
“Customer” means any person or entity receiving or entitled to receive Products or Services from Delsys.
“Customer Training” means the training of the Customer’s staff in the use of the Goods and (if applicable) the Software.
“Delivery” means when the Products have been delivered in accordance with clause 6 and “Delivered” shall have a corresponding meaning.
“Distributor” means a person appointed by Delsys, under a separate agreement, to resell the Products in a specific territory.
“Goods” means any electromyographic(EMG)system or other equipment, article or product (other than the Software) to be sold to a Customer by Delsys as set out in an Order Acknowledgement.
“Insolvency Event” means the filing by Customer of a petition for bankruptcy, the filing against Customer of a petition for bankruptcy, the undertaking by Customer of a composition with its creditors, an assignment for the benefit of Customer’s creditors or any similar act or undertaking by or against Customer.
“Installation” means the installation of the Products at the Customer’s premises.
“Order” means a request made by the Customer to Delsys for the supply of Products or Services.
“Order Acknowledgement” means a written response from Delsys accepting an Order from a Customer.
“Price” means all amounts payable by the Customer in respect of the supply of the Products and Services under an Order Acknowledgement.
“Products” means the Goods and Software.
“Quotation” means a non-binding written price estimate (as revised or varied by Delsys from time to time in accordance with these Terms) issued by Delsys to the Customer for the supply of Products or Services.
“Remedy” has the meaning in clause 13.
“Services” means all services provided or to be provided by Delsys to the Customer under an Order Acknowledgement.
“Software” means a machine-readable version of Delsys’ proprietary computer software identified in the Order Acknowledgement which is intended to be utilized in conjunction with the Goods, together with any technical manuals or instructions relating to the use of such software, but shall exclude third party software.
“Software License” means the license granted under clause 8.
“Terms” means these standard terms and conditions of sale.
“Warranty Period” has the meaning in clause 13(a).
2. Application of Terms
- These Terms constitute the sole terms and conditions governing the purchase by Customer from Delsys of Products or Services. Customer may acknowledge its acceptance of these Terms by executing and returning the Quotation to Delsys and, in any event, Customer shall be deemed to have accepted and agreed to these Terms by its receipt of the Products or Services.
- Any terms and conditions different from or in addition to these Terms, including any contained in the Order or in any other document furnished by Customer, shall be of no force or effect and Delsys hereby objects to and rejects in their entirety all such terms and conditions, as Delsys’ agreement to sell the Products or Services is expressly made conditional upon the use of these Terms.
- A contract made between Delsys and a Customer shall consist of these Terms and the Order Acknowledgement. If there is any inconsistency between these two documents, the Order Acknowledgement shall take precedence.
3. Quotations and Orders
- Any Quotation given by Delsys shall be in writing and shall be provided with a copy of these Terms. In the event that any part of the purchase and sale of Products utilizes electronic data interchange, internal or third party portal, or any other electronic means, these Terms will continue to apply to the purchase and sale of Products or Services.
- When an Order is placed by a Customer in response to a Quotation, that Order shall constitute an offer made by the Customer to Delsys and be subject to these Terms. Such an offer shall be treated as the Customer’s acceptance of these Terms. The Order may be accepted or rejected by Delsys.
- An Order shall be accepted by Delsys only if an Order Acknowledgement is issued by Delsys in relation to that Order. In no case shall issuing a Quotation constitute an Order Acknowledgement
- Any Order specifying Products not ordinarily provided by Delsys shall constitute a Custom Order. Custom Orders shall specify in detail any modification, addition or removal of any component. Delsys, at its sole discretion, may refuse any aspect of the requested customization. If Delsys provides an Order Acknowledgement for the request, the Price of the customization will be determined solely by Delsys.
- An Order shall (in the absence of any contrary stipulation by Delsys) be deemed to incorporate the price stated in the most recent Quotation (as subsequently revised or varied).
- All prices stated in Quotations shall be in US Dollars (unless otherwise indicated in the Quotation) and are exclusive of shipment, insurance and all government duties and taxes (unless otherwise specified in the Quotation). These are the responsibility of the Customer.
- The price stated in any Quotation may be varied by Delsys at any time prior to issue of an Order Acknowledgement or after issue of an Order Acknowledgement (provided such variation is in accordance with these Terms).
- If, following receipt by Delsys of an Order and prior to issuance of an Order Acknowledgement, Delsys becomes unable or unwilling to supply the Products or Services (or part thereof) specified in the Order for the Price stated in the relevant Quotation, Delsys may issue a revised Quotation. The Customer shall confirm its Order and acceptance of the Terms on the revised Quotation by sending written notice to Delsys.
- At any time prior to Delivery, Delsys may vary the Price to reflect increases in cost of Product components or to take account of any other increases in costs, including, without limitation, supplies, materials, labor, operation or transport; provided that, in the event of any variation in Price the Customer may cancel the Order within 14 days of being notified of the change and if the Order is cancelled each party shall be discharged from any further liability to the other in relation to that Order. In the event of such cancellation all money paid by the Customer to Delsys in respect of the cancelled Order shall be refunded to the Customer. If the Customer does not cancel the Order within 14 days, the Customer will be deemed to have agreed to the increase and the Price will increase accordingly.
- After issuance of the Order Acknowledgement the Customer may not vary its Order.
The Customer shall pay the Price to Delsys in cash, by check, or by such other means as Delsys may direct. Unless otherwise provided in the Quotation or the Order Acknowledgement, Delsys requires payment 30 days net. However, for Distributors Delsys requires payment 45 days net.
- All costs associated with Delivery shall be paid for by the Customer.
- Delsys shall use reasonable endeavors to make the Products available by the agreed date. However, time shall not be of the essence and Delsys shall not be liable for any loss arising out of any delay or failure in making the Products available for Delivery.
- Risk of loss of or damage to the Products shall pass to the Customer on Delivery.
- Notwithstanding Delivery of any Products, the title to any Product shall only pass to the Customer when Delsys has received all amounts owed to it from the Customer, whether or not then due and whether or not owing in respect of the particular item.
- Until payment in full for any Products, Customer hereby grants Delsys a first priority purchase money security interest therein and Delsys shall have all rights of a secured party with respect thereto until payment in full is made therefor.
- Any Software shall be licensed to the Customer in accordance with this clause 8.Subject to the payment of all amounts due under these Terms, Delsys grants the Customer a non-exclusive, terminable license to use the Software listed in the Order Acknowledgement, in accordance with all user documentation which is provided with the Software and in accordance with these Terms.
- The Software License permits the Customer to install on a computer one copy only of each item of Software that may only be accessed and used by the number of concurrent users in the Order Acknowledgement. The Software may only be accessed and used at the Customer’s premises specified in the Order Acknowledgement.
- The Customer may not:
- loan, rent, lease or license the Software or any copy of it;
- reverse engineer or decompile the Software except to the extent permitted by applicable law notwithstanding a contractual prohibition; or
- sublicense the Software.
- The Customer may assign all its rights to use the Software to another person or entity provided that such assignment occurs with the transfer if Goods on which the Software is installed and the Customer (i) transfers the Software License, the physical medium in which the Software is made available, user documentation and all copies of the Software and user documentation; (ii) retains no copies of the Software, including copies stored on a device; (iii) remains liable under these Terms for any breach of its terms by the assignee; and (iv) notifies Delsys in writing that the assignment has taken place and tells Delsys the identity of the assignee.
- The Software License automatically terminates if the Customer fails to comply with any provision of these Terms or an Insolvency Event occurs in relation to the Customer.
- The Customer is entirely responsible for the use made of the Software. In particular, the Software is not intended to replace the clinical skill of a medical practitioner or the independent professional judgment of individual clinical circumstances to make a diagnosis or determine a patient’s treatment. The Software should only be used by those who have familiarized themselves with its operation, functions, capabilities and limitations; and should not be relied upon, by itself, as the sole method of making any diagnosis or determining any treatment.
- The use of the data produced by the Software is the sole responsibility of the Customer. Delsys strongly advises the Customer to review the data for anypeculiarities or inconsistencies.
9. Import and Export Licenses
- The Customer is responsible for obtaining and shall apply for all import licenses and any other permits required by the authorities of the country in which the Products are to be located or used and any other country through or over which the Products are to be transported. The Customer indemnifies Delsys against any loss, damage or expense (including reasonable legal costs) because Products are shipped or carried without valid import licenses or other requisite permits.
- Delsys shall not be liable for any loss arising from any delay in the Customer obtaining all relevant import licenses or other requisite permits.
- Delsys shall apply for any appropriate export licenses required by the United States authorities in relation to the export of the Products. Delivery of the Products shall be conditional on such license(s) being issued. Delsys shall have no liability in respect of any delay in obtaining or failure to obtain such license(s). In circumstances where it has not proved possible to obtain the required export license(s) within a reasonable time, Delsys shall repay to the Customer any funds advanced by the Customer less any costs or expenses incurred by Delsys in attempting to obtain any export license.
10. Inspection of Products on Arrival
- The Customer shall inspect the Products on arrival at the Customer’s premises and, within 7 days of arrival, notify Delsys, in writing, of any damage to the Products and any discrepancy between the Products and items listed in the Order Acknowledgement. If there is damage or discrepancy, Delsys shall be given a reasonable opportunity to inspect the Products concerned.
- Delsys shall not be liable in respect of any damage or discrepancy which arose as a result of or is the consequence of the shipment of the Products. In the case of other types of damage or discrepancy, provided that the Customer has (i) notified Delsys of that damage or discrepancy within 7 days of arrival of the Products; and (ii) provided Delsys with sufficient details of the damage and discrepancy, then Delsys shall either, at its option, repair or replace (without charge) the affected Products in accordance with clause
This shall be Delsys’ sole responsibility and Customer’s sole remedy in the event of damage or discrepancy on arrival at the Customer’s premises.
- If the Order Acknowledgement provides that Delsys (or its sub-contractor) is to provide Installation, the Customer shall, at its own expense, comply with all reasonable requirements of Delsys (or its sub-contractor) in relation to the installation, and ensure that the site for Installation is safe in all respects. In all other circumstances, the Customer shall be responsible for Installation.
- The Customer will make sure that the environment where the Product is to be located is free of interfering electromagnetic radiation, such as, but not limited to, WiFi networks and excessive power lines radiation, that would disturb the proper working of the Product.
- If any certificates or other approvals by governmental or other authorities are required for the Installation, these shall be obtained by the Customer without delay at the Customer’s expense, regardless of who is carrying out the Installation.
12. Exclusion of Liability
- In no circumstances shall Delsys be liable under or in relation to these Terms or their subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
- loss of profits;
- loss of sales;
- loss of opportunity;
- loss of data;
- loss of use of the Products or any other software; or
- indirect, incidental, special or consequential loss or damage, whether Delsys is advised of the possibility of any such losses being incurred or not and whether any such losses are reasonably foreseeable or otherwise.
- Delsys’ total liability arising from or in connection with these Terms and in relation to anything which Delsys may have done or not done in connection with these Terms (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to the Price paid or payable by the Customer.
- Delsys will not be liable for breach of any of these Terms (including breach of any warranty) to the extent that the breach concerned arises from:
- use of any Products other than in accordance with normal operating procedures as described in the manuals or as otherwise notified to the Customer by Delsys;
- any alterations to any Products made by anyone other than Delsys or someone authorized by Delsys;
- any problem with the computer or equipment on which the Software is installed or the Goods used;
- any abnormal or incorrect operating conditions;
- any other hardware, equipment or software being used with or in relation to any Products, unless this use has been expressly approved by Delsys; or
- as a consequence of the shipment of the Products.
- Subject to clause 12(c) and the remainder of this clause 13, Delsys warrants that:
- all Services will be provided with reasonable skill and care;
- the Goods shall, during the Warranty Period, be free from material defects in materials and workmanship under normal conditions of use. In these Terms, the “Warranty Period” shall be the period commencing on Delivery and ending 12 months from that date; and
- the Software shall, during the Warranty Period, conform in all material respects to the descriptions contained in the user documentation supplied with that Software, provided that the Software is used in accordance with that documentation and on appropriate hardware.
- If any of the warranties in clause 13(a) is breached, the Customer will notify Delsys in writing as soon as is reasonably possible. The Customer must give Delsys a reasonable time to fix the problem and (if necessary) to re-perform any relevant Services or repair or replace the relevant Product (together a “Remedy”). This will be done without any additional charge to the Customer, except that in the case of Goods, Delsys may require the Customer to return
- the Goods, at its own expense, to Delsys’ premises (or such other address as provided by Delsys) with a full description of the alleged defect that is causing the breach. If Delsys is able to provide a Remedy within a reasonable time, Delsys will have no other obligations or liability in relation to the breach in question. If Delsys is unable or unwilling to supply a Remedy within a reasonable time, or Delsys does not think that it is a sensible way to deal with the problem, then Delsys may:
- in the case of a breach of clause 13(a)(i), refund to the Customer the amounts actually paid by the Customer to Delsys in relation to the Services which are the subject of the breach; and
- in the case of a breach of clauses 13(a)(ii) or (iii), take back the Products which are the subject of the breach and refund to the Customer the amounts actually paid by the Customer to Delsys in relation to those Products.
- This shall be Delsys’ sole responsibility and Customer’s sole remedy in the event of breach of the warranties in clause 13(a).
- Where a breach of the warranty in clause 13(a) relates to a portion of the relevant Products only and other elements supplied are capable of use separately without material detriment to the Customer, then Delsys may take back (and refund in respect of) that affected portion.
- Where Goods are replaced by Delsys, the replaced Goods (including any parts) shall become the property of Delsys.
- Except as expressly set out in these Terms, no conditions, warranties or other terms apply to any Products or Services or other goods or services supplied or to be supplied by Delsys. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
- Customer is responsible for deciding whether or not the Products are suitable for the Customer’s purpose and Delsys will not be responsible for this decision.
- In relation to Software, Delsys does not represent or warrant that the Software or its operation will be entirely free from errors.
- If Delsys carries out any repair or replacement of the Products as specified in clause 13(b) but in circumstances where the relevant defect or malfunction has been caused by an accident, by the improper or abnormal use of the Products by the Customer, or for one of the reasons that Delsys is not responsible under clause 12(c) or otherwise, the Customer shall pay for such repair or replacement at Delsys’ then current rates, within 30 days of Delsys
- issuing an invoice for that work.
- In relation to third party software, any warranty claim against the licensor of that software shall be dealt with by the Customer and the licensor under the relevant third party software License.
14. Withholding or Suspension
Without prejudice to any other provision of these Terms, Delsys may withhold or suspend Delivery of the Products on the occurrence, or (in Delsys’ reasonable determination) the imminent occurrence, of an Insolvency Event in relation to the Customer.
Such withholding or suspension by Delsys in accordance with clause 14(a) is not a breach of these Terms and may continue until Delsys has received or is satisfied that it shall receive payment in full for the Products or that the Insolvency Event no longer exists.
15. Intellectual Property Rights
Delsys (and its licensors) reserve and retain full ownership of and interest in all inventions, designs, copyrights, processes and any other intellectual property rights of whatever nature relevant to the Products and any deliverable provided from or used by Delsys with the Services. The intellectual property rights in all drawings, specifications and manuals created or issued by or on behalf of Delsys belong to Delsys (or its licensors) and are considered by Delsys to be confidential. The Customer may not reproduce or disclose these drawings, specifications and manuals to anyone without Delsys’ prior written consent.
If any of the Products have been designed, manufactured or processed in compliance with the Customer’s specification, the Customer indemnifies Delsys against any loss, damage or expense (including reasonable legal costs) which Delsys incurs or becomes liable for as a result of any claim that the Customer’s specifications, or the Products (to the extent that they have been designed, manufactured or processed in compliance with that specification) infringe the intellectual property rights of any third party. The Customer shall inform Delsys promptly in the event of it receiving a claim or otherwise becoming aware of any allegation by a third party that use of the Products infringes the rights of such third party. The Customer shall make no admission in respect of such claims.
16. Force Majeure
Delsys shall not be liable for any delay or failure in performing any of its obligations under these Terms to the extent that such delay or failure is
caused by circumstances outside the reasonable control of Delsys (including any delay caused by any act or default of the Customer or by a Delsys supplier).
If, as a result of circumstances outside the reasonable control of Delsys, Delsys is only able to deliver part of the Products or Services, Customer shall pay to Delsys the proportion of the Price appropriate to the Products or Services which have been delivered or performed.
Subject to clause 17(b) and except as set out in clause 8(e), the Customer may not assign, transfer or otherwise deal with its rights and/or obligations under these Terms without the prior written consent of Delsys. Delsys may assign its rights or obligations under these Terms without the consent of the Customer.
If the Customer wishes to finance the purchase o f Products through a third party then Delsys may (at its sole discretion) allow the Customer to transfer the obligations of payment contained in clause 5 to such third party with the prior written approval of Delsys, in which event the title to the Goods shall pass to the transferee upon receipt by Delsys in full of all amounts due and payable under these Terms.
18. Severability, Waiver, Entire Agreement and Third Party Rights
If any provision of these Terms is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of (i) any other provision of these Terms; or (ii) these Terms as a whole.
If a party (i) delays in enforcing its rights under these Terms (whether in relation to a breach by the other party or otherwise); or (ii) agrees not to enforce its rights, or to delay doing so, then unless the party concerned expressly agrees otherwise, that delay or agreement shall not be treated as waiving the rights of the party concerned. Any waiver of a party’s rights in relation to a particular breach of these Terms shall not operate as a waiver of any subsequent breach. No right, power or remedy to which either party is entitled under this agreement is exclusive of any other right, power or remedy available to that party.
These Terms constitute the entire agreement in respect of their subject matter. Each party acknowledges that, in entering into these Terms, it has not relied on any statement or representation made by the other party that has not been set out in these Terms, and agrees that it will not try to rely on any representation made by the other party except to the extent that the representation concerned is contained in these Terms.
If the Customer is a Distributor, then this clause 19 will apply to that Customer in addition to the other Terms. This clause will only apply to Distributors. If there is any inconsistency between this clause 20 and the remainder of the Terms, then this clause shall prevail to the extent of the inconsistency.
Clause 8 will not apply to the Distributor.
The following additional clauses will apply to the Distributor:
if Installation is to be provided by Delsys, the Distributor shall inform Delsys of the location of the end-user’s premises at which Installation is to take place, and Delsys shall carry out such Installation as a sub-contractor of the Distributor;
the Distributor indemnifies Delsys against any loss, damage or expense (including reasonable legal costs) which Delsys incurs or becomes liable for as a result of any claim by an end-user that has been provided with the Products by the Distributor; and
Delsys may, in its absolute discretion, permit the Distributor to sell the Products to an end-user prior to receipt by Delsys of payment in full of the Price, provided that:
such permission is in the form of a written notice to the Distributor, signed by Delsys; and
title to the Goods shall not pass to the end-user until the Distributor has received payment in full of all monies owing from the end-user.
20. Applicable Laws
These Terms shall be governed by t h e laws of th e Co m m on we a l t h of Massachusetts, USA. The parties submit to exclusive jurisdiction of the federal and state courts of Massachusetts, USA. Notwithstanding the submission to the exclusive jurisdiction, Delsys may bring proceedings in the courts of any other locale which may have jurisdiction for reasons other than the parties’ choice, for the purpose of seeking:
an injunction, order or other non-monetary relief (or its equivalent in such other state); or
any relief or remedy which, if it (or its equivalent) were granted by the courts of the Commonwealth of Massachusetts, USA, it would not be enforceable in such other locale.