THE FOLLOWING TERMS AND CONDITIONS WILL APPLY TO ALL ORDERS RECEIVED AND ALL SALES MADE BY SCHIVO MEDICAL LIMITED (“SELLER” or “SCHIVO”) TO ANY PERSON, FIRM, COMPANY OR OTHER ORGANISATION WHO OR WHICH HAS ORDERED GOODS AND/OR SERVICES FROM SCHIVO. PLEASE READ CAREFULLY.
The following words and or expressions shall for the purposes of these Terms and Conditions have the meanings ascribed to them below:
1.1 These Terms and Conditions shall be incorporated into the Contract and shall apply to the exclusion of any conditions of the Buyer (whether included on the Buyer’s website or otherwise). These Terms and Conditions may not be varied or waived except with the express written agreement of the Seller. The failure of the Seller to enforce its rights under the Contract at any time, for any period of time, shall not be construed as a waiver of any such rights.
1.2 Buyer shall be deemed to have accepted all Terms and Conditions upon Seller’s receipt of a purchase order from the Buyer or upon delivery of the Goods(s) to the Buyer (whichever is the earlier) notwithstanding the absence of a written acceptance from the Buyer. Nothing in the Buyer’s acceptance (including in any printed form) shall modify any of the Terms and Conditions herein and any term and/or condition which are in any way inconsistent with or in addition to the Terms and Conditions hereof is expressly rejected.
1.3 All Quotations issued be Seller will remain valid for a period of 30 days from the date of issue to the Buyer.
1.4 These Terms and Conditions shall be construed in accordance with the laws of Ireland and shall be subject to the exclusive jurisdiction of the courts.
All Goods supplied by Seller shall be in accordance with the quotation given and any further specifications or descriptions expressly agreed or listed or set out on the face of the Seller’s order acknowledgement.
The Seller reserves the right, subject to prior written notice, to make any change in the specification of the Goods, which does not materially affect the installation, performance or price thereof.
3.1 Except as otherwise expressly agreed, all deliveries hereunder will be FCA Seller’s plant via a carrier selected by Buyer at its option, or otherwise by Seller, freight collect, to Buyer and will be packed in Seller’s standard commercial shipping packages.
3.2 The Buyer will be deemed to have accepted all goods upon their delivery by Schivo to the address as specified in the order.
3.3 The Buyer shall notify the Seller in writing within five (5) working days of delivery of any short delivery or defects reasonably discoverable on careful examination. Schivo’s sole obligation shall be, at its option, to replace or repair any defective Goods or refund the purchase price of any undelivered Goods.
3.4 Partial deliveries and related invoicing shall be permitted. If the Buyer fails to accept delivery of the Goods within thirty (30) day period after receiving notice from the Seller that they (or any part thereof) are ready for delivery, the Seller may dispose of or store the Goods at the Buyer’s expense.
3.5 Delivery or shipping dates are approximate only and merely represent Seller’s best estimate of the time required to make delivery or shipment. Schivo will use reasonable endeavours to avoid delay in delivery on the notified delivery dates. However, time is not of the essence and failure to deliver by the specified date will not be a sufficient cause for cancellation, nor will Schivo be liable for any loss or damage due to delay in delivery.
3.6 Where delivery of any Goods requires an export license or other authorization before shipment, Schivo shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorization.
3.7 Seller’s obligations hereunder will be dependent upon Seller’s ability to obtain the necessary raw materials. Seller will not be liable for any loss or expense (incidental, indirect, economic, consequential or otherwise) incurred by the Buyer as a result of any delay in delivery for any reason other than arbitrary refusal by Seller to perform.
3.8 Where any Good (s) requires installation, the Buyer shall be responsible at its own cost for making the place where the Goods will be located ready for installation. Installation will not begin unless such responsibilities are completed.
4.1 Schivo reserves the right, subject to prior written notice, to make any change in the specification of the Goods, which does not materially affect the installation, performance or price thereof.
4.2 Goods may only be returned with prior authorisation from Schivo, including the issuing of an RMA (Return Material Authorisation) number.
In all cases, risk of loss or damage will pass to Buyer upon Seller’s delivery of the Goods to the carrier for shipment to Buyer and no loss or damage will relieve Buyer of any obligation hereunder, including payment for lost or damaged Goods. Charges for shipping may not reflect net transportation costs paid by Seller. Buyer shall reimburse Seller for any and all costs of storage incurred by Seller after the date that Seller is prepared to make shipment.
5.1 Unless otherwise stated in the order, payment of the price of the Goods comprised in each order shall be net thirty (30) days from the date of shipment.
5.2 All payments shall be in the currency agreed at time of quotation. The Buyer shall make all payments as provided herein without regard to whether the Buyer has made or may make any inspection or use of any Goods. No discounts or setoffs shall be made by the Buyer against any invoices unless approved in advance by Seller.
5.3 Title to the goods comprised in the order shall not pass to Buyer until Buyer has paid the full price, although the Seller reserves the right to sue for the price once payment becomes due notwithstanding that title may not have passed.
5.4 Any invoiced amount which is not paid when due may bear interest at the rate of 8 % per annum or the highest rate then permitted by law, whichever is the greater, until paid in full, calculated on a daily basis and compounded monthly. Interest will be payable both before and after judgment.
5.5 Seller reserves the right to exercise any of its lawful remedies if the Buyer does not make payments when due. The Buyer shall promptly reimburse Seller for all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in collecting sums due it hereunder.
5.6 This Agreement and all shipments made hereunder shall at all times be subject to the approval by Seller of the Buyer’s financial condition. If the financial condition of the Buyer at any time becomes unsatisfactory to Seller, in Seller’s sole discretion, or if the Buyer fails to make any payment when due, in addition to any other rights Seller may have, Seller may defer or decline to make any shipment or shipments hereunder or may condition any such shipment upon receipt of satisfactory security or cash payments in advance.
6.1 The sale price(s) for the Goods shall be the Seller’s quoted price (but exclusive of value-added or other taxes). The Buyer acknowledges that the price of the Goods and other Terms have been set based on the agreed allocation of the risk for any defective Goods between the parties. The buyer further acknowledges that the pricing and terms would have been different if there had been a different allocation of the risk.
6.2 All quotations issued by Schivo for the supply of Goods and/or Services shall remain open for acceptance for the period stated in the quotation or, if none is stated, for sixty (60) days. In all other cases, prices payable are those currently in effect in Schivo´s then current price list, which may also be subject to minimum orders, or additional charges for handling, freight, packaging, insurance.
6.3 Except as otherwise expressly stated herein, the prices do not include value-added tax (VAT), local sales tax, excise or other similar taxes applicable to the Goods or Services. All such taxes shall be paid by the Buyer. If the Seller is required by law or regulation to collect such taxes, Seller will add such taxes to the sale price of the Goods.
6.4 Except as otherwise expressly stated herein, the prices are exclusive of all delivery, insurance, and packaging charges. Delivery, insurance, and packaging charges will be charged separately.
Goods damaged in transit must be notified to Seller in writing within 3 days of delivery.
Seller shall not be liable for delay in performance or non-performance of any of its obligations hereunder, in whole or in part if such performance is rendered impracticable by the occurrence of any contingency or condition beyond the control of either Seller or Seller’s suppliers, including without limitation war, sabotage, embargo, riot, terrorism, or other civil commotion, failure or delay in transportation, act of any government or any court or administrative agency thereof (whether or not such action proves to be invalid), labour dispute (whether or not involving Seller’s employees), accident, fire, explosion, flood, earthquake or other casualty, shortage of labour, fuel, energy, raw materials or machinery or technical failure. If any such contingency or condition occurs, Seller may allocate production and deliveries in any reasonable manner and may include in such allocation any regular customers, whether or not then under contract, and Seller’s own requirements. This provision shall not apply to the Buyer’s obligation to pay any sums due under this Agreement.
9.1. Goods – Schivo warrants that its Goods meet Schivo’s specifications at the time of delivery. All warranty claims on Goods must be made in writing within thirty (30) days of receipt of the Goods. Schivo’s sole liability and Buyer’s exclusive remedy for a breach of this warranty is limited to repair, replacement, or refund at the sole option of Schivo.
9.2 Services – Schivo warrants that all Services will be carried out with reasonable care and skill. Schivo’s sole liability for breach of this warranty shall be at its option to give credit for or re-perform the Services in question. This warranty shall only extend for a period of ninety (90) days after the completion of the Services and any claim shall be submitted in writing within such period.
9.3 To the maximum extent permitted by applicable law Schivo hereby expressly disclaims, and Buyer hereby expressly waives, any warranty regarding results obtained through the use of the Goods, including without limitation any claim of inaccurate, invalid, or incomplete results. All other warranties, representations, terms, and conditions (statutory, express, implied or otherwise) as to the quality, condition, description, merchantability, fitness for purpose, or non-infringement (except for the implied warranty of title) are hereby expressly excluded.
9.4 Schivo shall have no liability under the warranties contained in this Section 9 in respect of any defect in the Goods arising from: specifications or materials supplied by the Buyer; fair wear and tear; wilful damage or negligence of the Buyer or its employees or agents; abnormal working conditions at the Buyer’s premises; failure to follow Schivo’s use restrictions or instructions (whether oral or in writing); misuse or alteration or repair of the Goods without Schivo’s approval; unusual mechanical, physical or electrical stress, modifications or repairs done by other than Seller, mishandling during shipment of the Goods; or any other abuse, misuse, or accident, or if the Buyer is in breach of its payment obligations under this Contract.
9.5 Neither party shall be liable for any indirect or consequential, or punitive damages of any kind from any cause arising out of the sale, installation, use, or inability to use any Good or Service, nor for, without limitation, loss of profits, goodwill or business interruption.
9.6 The total liability of Schivo arising under or in connection with the Contract, including for any breach of contractual obligations and/or any misrepresentation, misstatement or tortious act or omission (including without limitation, negligence, and liability for infringement of any third party intellectual property rights) shall be limited to damages in an amount equal to the amount paid to Schivo under the Contract.
9.7 In no circumstance shall Seller have any liability or obligation with respect to expenses, liabilities, or losses associated with the installation or removal of any Goods or the installation or removal of any components for inspection, testing, or redesign occasioned by any defect or by repair or replacement of Goods. Spare parts and hand tools ordered or supplied hereunder may contain used parts and/or be reconditioned.
9.8 The exclusions of liability in these Terms and Conditions shall only apply to the extent allowed according to applicable law.
If Buyer furnishes any components, tools, dies, jigs or other property, equipment, material, or facilities to Seller in connection with the performance of this Agreement, Buyer shall bear all risk of loss or damage with respect to such property, equipment, material, or facilities and shall indemnify and hold Seller harmless from and against all loss, cost, expense or liability arising in connection with its use of any such property, equipment, material, or facilities. Seller shall not be responsible for any delay in performance or on performance hereunder or the failure of any Good to conform to applicable specifications resulting, in whole or in part, from Seller’s use of property, equipment, material, or facilities furnished by Buyer.
The Seller must be informed in writing within five (5) days of its acceptance of the order of any changes, alterations, reductions or cancellations. Where changes are made to the order after acceptance of the order, the Buyer shall be liable to pay for the full cost of any commitments entered into by the Seller + 30% unless agreed otherwise at the time of the order.
Cancellation of Custom Good(s): If Seller determines the Goods being cancelled to be custom made Goods, Seller may deny Buyer’s cancellation request.
Except where a claim arises as a direct result of the negligence or breach of contract of Schivo, the Buyer shall indemnify Schivo in respect of any claim which may be made against Schivo:
(i) arising in connection with the Buyer’s unintended use of the Goods;
(ii) alleging that the Buyer´s use of the Goods infringes the intellectual property rights of any third party.
In the event that the Buyer becomes insolvent or applies for bankruptcy or, being a company, goes into liquidation (other than for the purposes of a solvent reconstruction or amalgamation), Schivo shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of Schivo hereunder.
Schivo may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any third party without the Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete Schivo’s assignment or novation. Schivo may subcontract portions of the work, so long as Schivo remains responsible for it. Buyer shall not delegate or assign any or all of its rights or obligations under the Contract without Schivo’s prior written consent and any purported delegation or assignment of such rights or obligations shall be void.
The Terms and Conditions shall constitute the entire agreement between the Seller and Buyer in respect of the Goods and Services (if any) specified therein and shall supersede any previous negotiations, commitments, and writings in respect thereof. Any purported alteration, modification, amendment, or addition to these Terms or Conditions shall be void and of no effect, unless the same shall have been expressed in writing and signed by the duly authorised representatives of both parties.
All notices and other communications hereunder shall be in writing and shall be mailed by first-class, registered, express or certified mail, postage prepaid, to the parties hereto at their respective designated addresses, subject to the right of either party to change such address upon ten (10) calendar days prior written notice.
Schivo aims to provide a high level of service. If you do have an enquiry or complaint regarding the goods provided by us please address them to SCHIVO MEDICAL LIMITED, UNIT 1-4 IDA Business Park, Cork Road, Waterford.