These are the terms and conditions (“Terms”) of MedaPhor Limited (trading as Intelligent Ultrasound Simulation) (“MedaPhor”), a company incorporated and registered in England and Wales with company number 05176992 whose registered office is at Cardiff Medicentre, Heath Park, Cardiff, CF14 4UJ.
Please note that the Equipment (as defined below) is not for sale to individuals acting as “consumers” (i.e. outside of a trade, business, craft or profession).
The definitions and rules of interpretation in this clause apply in these Terms (as defined below).
Business day – a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Contract – the Customer’s order and MedaPhor’s acceptance of it in accordance with clause 3.2 and incorporating these Terms.
Customer – the person, firm or company who purchases Equipment from MedaPhor.
Delivery location – the place of delivery specified in MedaPhor’s order acknowledgment.
Documentation – any documentation provided by MedaPhor to the Customer in connection with the use of the Equipment.
Equipment – MedaPhor’s HeartWorks® Augmented Reality cardiac anatomy and echocardiography simulation tool as detailed in the Contract.
Force Majeure Event – events, circumstances or causes beyond a party’s reasonable control.
Intellectual Property Rights – patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Software – the software pre-installed on the Equipment.
VAT – value added tax chargeable under English law for the time being and any similar additional tax.
Website – MedaPhor’s website at www.intelligentultrasound.com or such other web address from time to time.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.
1.6 A reference to writing or written includes email (providing it is supported by a valid server delivery receipt) but not fax.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Application of Terms
2.1 These Terms shall apply to and be incorporated in all Contracts entered into via the Website.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on MedaPhor unless in writing and signed by a duly authorised representative of MedaPhor.
3 Basis of Sale
3.1 The Customer is responsible for ensuring that its order is complete and accurate before submitting it.
3.2 A binding contract shall not come into existence between MedaPhor and the Customer unless and until MedaPhor accepts the Customer’s order by sending a written order acknowledgement to the Customer.
3.3 No order which has been acknowledged by MedaPhor may be cancelled by the Customer, except with MedaPhor’s agreement in writing and provided that the Customer indemnifies MedaPhor in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by MedaPhor as a result of cancellation.
4 Quantity and Description
4.1 The quantity and description of the Equipment shall be as set out in the order acknowledgement which MedaPhor emails to the Customer.
4.2 All descriptive matter, specifications and advertising issued by MedaPhor, and any descriptions or illustrations contained in MedaPhor’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in any product description or price information on the Website, or in any printed documentation issued by MedaPhor, shall be subject to correction without any liability on the part of MedaPhor.
4.4 MedaPhor may (but is not obliged to) make any changes to the specification of the Equipment which are required to conform with any applicable legislation and will seek to ensure these do not materially affect the quality or performance of the Equipment.
4.5 MedaPhor’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
5.1 All prices shall be as stated on the Website from time to time (and shall be shown in pounds sterling, US dollars and euros).
5.2 All prices for Equipment to be delivered in the UK include VAT and are subject to Delivery Duty Paid (DDP) as defined in the Incoterms 2020.
5.3 All prices for Equipment to be delivered in the USA include local sales taxes and are subject to Delivery Duty Paid (DDP) as defined in the Incoterms 2020
5.4 All prices for Equipment to be delivered in the European Union (excluding the UK) include VAT and subject to Delivered At Place (DAP) as defined in the Incoterms 2020.
5.5 All prices for Equipment to be exported out of the UK to any other part of the world (excluding the UK, the USA and the European Union) are exclusive of local sales tax and are subject to Delivered At Place (DAP) as defined in the Incoterms 2020.
6.1 Unless otherwise agreed in writing, all payments shall be made to MedaPhor in the currency selected by the Customer (pounds sterling, US dollars or euros) when submitting its order via the Website.
6.2 The Customer shall pay for the Equipment when placing its order. If MedaPhor does not accept the order, the price shall be refunded in full.
6.3 MedaPhor may, without prejudice to any other rights it may have, set off any liability of the Customer to MedaPhor against any liability of MedaPhor to the Customer.
7 Delivery of Equipment and Acceptance
7.1 MedaPhor shall use its reasonable endeavours to deliver the Equipment to the Delivery Location on the date or dates specified in MedaPhor’s order acknowledgement, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and MedaPhor is not in any circumstances liable for any delay in delivery, however caused.
7.2 The Equipment may be delivered by MedaPhor in advance of the quoted delivery date on giving reasonable notice to the Customer.
7.3 The Customer shall be deemed to have accepted the Equipment unless it rejects the Equipment within three (3) days after the date of delivery. If the Customer notifies MedaPhor of any damage, shortage or loss in transit in accordance with this clause, MedaPhor shall replace or repair any Equipment which is proven to MedaPhor’s satisfaction to have been lost or damaged in transit.
8 Risk and Property
8.1 Risk in Equipment to be delivered in the UK shall pass to the Customer in accordance with Delivery Duty Paid (DDP) as defined in the Incoterms 2020.
8.2 Risk in Equipment to be exported out of the UK shall pass to the Customer in accordance with Delivered At Place (DAP) as defined in the Incoterms 2020.
8.3 Ownership of the Equipment shall pass to the Customer on delivery.
9.1 Where the Equipment is supplied for export from the United Kingdom, the Customer shall be responsible for complying with any legislation governing:
9.1.1 the importation of the Equipment into the country of destination; and
9.1.2 the export and re-export of the Equipment,and shall be responsible for the payment of any duties on it.
10.1 MedaPhor warrants to the Customer that the hardware elements of the Equipment will be free from material defects in workmanship and materials for a period of 12 months from the date of delivery. Software shall be subject to the warranty set out in MedaPhor’s standard licence terms. The remainder of this clause 10 relates to hardware only.
10.2 MedaPhor undertakes (subject to the remainder of this clause 10), at its option, to repair or replace Equipment which is found to be defective as a result of faulty materials or workmanship within 12 (twelve) months of delivery.
10.3 MedaPhor shall not in any circumstances be liable for a breach of the warranty contained in clause 10.2 unless:
10.3.1 the Customer gives MedaPhor written notice of the defect within seven (7) days of the time when the Customer discovers or ought to have discovered the defect; and
10.3.2 after receiving the notice, MedaPhor is given a reasonable opportunity of examining the Equipment and the Customer (if asked to do so by MedaPhor) returns the Equipment to MedaPhor’s place of business for the examination to take place there. MedaPhor shall bear the cost of the return unless clause 11.5 applies.
10.4 MedaPhor shall not in any circumstances be liable for a breach of the warranty in clause 10.2 if:
10.4.1 the Customer makes any use of Equipment in respect of which it has given written notice under clause 10.1; or
10.4.2 the defect arises because the Customer failed to follow MedaPhor’s oral or written instructions as to the storage, use or maintenance of the Equipment or (if there are none) good trade practice; or
10.4.3 the Customer installs any software other than the Software on the Equipment; or
10.4.4 the Customer alters or repairs the Equipment without MedaPhor’s written consent.
10.5 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the twelve-month period.
10.6 MedaPhor shall not in any circumstances be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.
11.1 MedaPhor shall not be liable for any non-delivery of Equipment unless the Customer notifies MedaPhor in writing of the failure to deliver within seven (7) days after the scheduled delivery date.
11.2 Any liability of MedaPhor for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or issuing a credit note for the price of the Equipment which has not been delivered.
11.3 If MedaPhor’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under clause 15.1), the Customer shall to pay all reasonable costs, charges or losses sustained by MedaPhor as a result, subject to MedaPhor notifying the Customer in writing of any such claim it might have against the Customer in this respect.
11.4 In the event of any claim by the Customer under the warranty given in clause 10.2, the Customer shall notify MedaPhor in writing of the alleged defect. MedaPhor shall have the option of testing or inspecting the Equipment at its current location or moving it to MedaPhor’s premises (or those of its agent or subcontractor) at MedaPhor’s cost.
11.5 If the Customer’s claim is subsequently found by MedaPhor to be outside the scope or duration of the warranty in clause 10.2, the Customer shall be responsible for the costs of transportation of the Equipment, investigation and repair.
12 Limitation of Liability
12.1 The following provisions set out the entire financial liability of MedaPhor (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
12.1.1 any breach of the Contract however arising; and
12.1.2 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the greatest extent permitted by law.
12.3 Nothing in these Terms excludes or limits the liability of MedaPhor for death or personal injury caused by MedaPhor’s negligence or fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.3, MedaPhor shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
12.4.1 loss of profits;
12.4.2 loss of business;
12.4.3 depletion of goodwill or similar losses;
12.4.4 loss of anticipated savings;
12.4.5 loss of use;
12.4.6 loss or corruption or data or information; or
12.4.7 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,
and MedaPhor’s total liability in contract, tort (including negligence and breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the Equipment under the Contract.
13.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment, the Software and any Documentation are and shall remain the sole property of MedaPhor or (as the case may be) its licensors.
13.2 The Software is provided subject to MedaPhor’s standard licence terms which must be accepted when the Equipment is first used.
14.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;
14.1.2 the other party (being an individual) takes enters into a voluntary arrangement with his creditors or is the subject of a bankruptcy petition;
14.1.3 the other party (being a company or other entity) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.1.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.1.5 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2 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 the Contract which existed at or before the date of termination.
14.3 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.
15.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract (save an obligation in respect of the payment of monies) if such delay or failure result from a Force Majeure Event.
15.2 Assignment and other dealings.
15.2.1 The Customer shall not assign, transfer or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of MedaPhor.
15.2.2 MedaPhor may at any time assign, transfer or deal in any other manner with any or all of its rights under the Contract.
15.3.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.3.2.
15.3.2 Each party may disclose the other party’s confidential information:
18.104.22.168 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 15.3; and
22.214.171.124 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15.5 Entire agreement.
15.5.1 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.
15.5.2 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.
15.6 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.7 Waiver. 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.
15.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.9.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
15.9.2 A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in clause 15.9.1 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
15.9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.10 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
15.11 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
15.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.