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1.1. In these Terms and Conditions:
.2 All payments shall be made by Buyer in full, free and clear of all deductions (including but not limited to withholding taxes). Buyer shall gross‐up the amounts due hereunder in order that the payments provided for under the Contract are paid fully such that Trecco Ltd is in the same position as if no withholding had taken place. Buyer shall furnish to Trecco Ltd within one (1) month accurate official receipts from the appropriate governmental authority for all deducted or withheld taxes.
2.1. Trecco Ltd shall ship Products to the to the Buyer Trecco Ltd will select the method of shipment and carrier to be used. Risks of loss and title shall pass to the Buyer on delivery to the actual address specified on the purchase order. Partial deliveries shall be permitted. If Buyer fails to accept delivery of the Products within 14 days after receiving notice from Trecco Ltd that they are ready for delivery, Trecco Ltd may dispose of or store the Products at the Buyer’s expense.
2.2. Trecco Ltd will use commercially reasonable efforts to avoid delay in delivery of Products within such time as may be expressly agreed upon with Buyer. Failure to deliver by the specified date will not be cause for (i) penalties, (ii) cancellation of a purchase order, or (iii) termination of the Contract. In addition, where delivery of any Product requires an export license or other authorization before shipment, Trecco Ltd shall not be responsible for any delay in delivery due to delay in, or refusal of, such license or authorisation.
2.3. Buyer shall notify Trecco Ltd in writing within five (5) business days of any short delivery or Product defects to Trecco Ltd specifications reasonably discoverable on careful examination, after which the Product shall be deemed accepted. In case of short delivery or defects, Trecco Ltd’s sole obligation shall be, at its option, to replace or repair any defective Products or refund the purchase price of any undelivered Product.
2.4. Unless specifically agreed otherwise on the purchase order, upon delivery the Buyer is wholly and solely responsible for any storage, aligning, fitting, assembling, implant or installation in accordance with the manufacturer’s instructions and accepted medical practice and guidelines which relates to the Product and the restrictions in clause 5 following.
2.5. Where the Equipment requires installation and it is included in the Trecco Ltd purchase order, Buyer shall be responsible at its own cost for making the place where the Equipment will be located ready for installation in accordance with Trecco Ltd’s instructions. Installation will not begin unless such responsibilities are completed.
2.6.1 Following installation, and when included in the Trecco Ltd’s purchase order, Trecco Ltd will proceed with final testing using Trecco Ltd’s usual performance specifications and using its standard instruments and procedures. Upon the satisfactory completion of such final testing demonstrating compliance with the above specifications (with any permitted variations/tolerances) Trecco Ltd may issue a “Test Certificate” which shall be conclusive evidence of such compliance and thereupon installation of the Equipment shall be deemed to be complete and in compliance with Trecco Ltd’s obligations under the Contract. In any event, Buyer agrees that the Equipment is accepted: (i) seven (7) days after the date on which Trecco Ltd notifies Buyer that final testing was successfully completed; (ii) upon issuance of the Test Certificate; or (iii) on the date Buyer first uses the Equipment for operational use, whichever is earlier.
2.6.2. Buyer, upon reasonable request to Trecco Ltd, shall be entitled to be present at and to witness the testing and shall not be entitled to raise any objection to testing carried out, or to the results thereof.
3.1. The price to be paid by the Buyer will be as specified on the purchase order. Unless otherwise agreed in writing, extra charges will apply for handling, freight, and packaging.
3.2. Buyer shall make all payments to Trecco Ltd in full in the currency invoiced no later than fourteen (14) days from the date of invoice (i.e. NET 14 ). Billing terms will be 100% at delivery. In the event of late payment, Trecco Ltd reserves the right to suspend delivery.
3.3 Trecco Ltd reserves the right to charge interest on any late payment, or partial late payment. This shall be calculated at a rate of LIBOR plus 2%, based on the LIBOR figure provided by Barclays Bank PLC, London.
3.3. All Trecco Ltd’s Quotes shall remain open for acceptance for the period stated in therein or, if none, for sixty (60) days.
3.4. Taxes. (a) All payments due and payable by the Buyer to Trecco Ltd under the Contract are exclusive of any Value Added Tax (“VAT”), sales and use tax, goods and services tax and similar indirect taxes. In the event that any VAT, sales and use tax, goods and services tax and similar indirect taxes are properly due under any applicable law, regulation or otherwise, this shall be charged by Trecco Ltd in addition to any other payments due hereunder and shall be payable by the Buyer on receipt of a valid invoice issued by Trecco Ltd, unless the Buyer provides Trecco Ltd with valid exemption documentation allowing Trecco Ltd not to charge the relevant indirect taxes. In addition and in the case of US domestic transactions only (i) in the event Trecco Ltd is assessed taxes, The price of Products will be in accordance with Trecco Ltd’s current Terms & Conditions of Sale interest and penalty by any taxing authority, Buyer agrees to reimburse Trecco Ltd for any such taxes, including any interest or penalty assessed thereon; and (ii) each Party is responsible for any personal property or real estate taxes on property that the party owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.
4.1. Trecco Ltd will obtain full measurements and specifications for each Product from the Buyer. The Buyer is always solely responsible for all measurements and specifications for each and every Product at each stage of the buying process.
4.2. In particular, the Buyer confirms that they are solely responsible for inspecting each Prototype. Once the Buyer has approved a Prototype Trecco Ltd will manufacture a Product to the measurements and specifications of that Protype and are not responsible if the Buyer subsequently wishes to make any changes.
4.3. Trecco Ltd reserves the right, subject to prior written notice to Buyer, to make any change in the specification of Products which does not materially affect the performance, use, installation or price under the Contract.
4.4. Products may only be returned with Trecco Ltd’s prior written authorisation. For any such returned Products, Trecco Ltd reserves the right, at Trecco Ltd’s sole discretion, to charge Buyer a restocking fee.
5.1. Use restrictions are a condition to the purchase of certain Products hereunder. Buyer agrees to strictly comply with all such restrictions as may be set forth in the purchase order and the Contract, on the Product, in any documentation or label or otherwise provided in writing to Buyer, as well as with any applicable regulatory requirements.
5.2. Except where clearly stated otherwise on the purchase order or on the Trecco Ltd provided label, Trecco Ltd products, which are not labelled as a Medical Device, are intended only for Buyer’s (i) further manufacture or production of a finished product or (ii) research use; and are not intended for diagnostic or therapeutic use or administration to animals or humans. Buyer is only purchasing or licensing Medical Device(s) for its own medical, billing and/or non‐entertainment use in the Country of Delivery. Trecco Ltd will not deliver or service products if it discovers Products have been or are intended to be used contrary to this Contract.
5.3. Buyer shall not use or permit the Products to be used in any manner that does not comply with all applicable laws. Any warranty granted by Trecco Ltd with respect to the Products shall be deemed void if any Product covered by such warranty is used for any purpose not permitted hereunder or otherwise in violation of any use restrictions referred to in this Section.
6.1. Equipment ‐ Trecco Ltd warrants to Buyer that all Equipment purchased hereunder will, at the time of shipment, meet Trecco Ltd’s measurements and specifications provided by the Buyer to Trecco Ltd in the Buyer’s purchase order and be free of defects in workmanship or materials under normal usage. Any related warranty claim hereunder shall be made within twelve (12) months after the date of delivery.
6.2. Goods ‐ Trecco Ltd warrants to Buyer that, for a period of ninety (90) days after delivery but before use or attempted use, including implantation or attempted implantation into an end-user, all Goods purchased hereunder will meet the measurements and specifications provided by the Buyer in accordance with the approved Prototype and any quality standard, regulation or law specified and included on the purchase order and the generally accepted manufacturing, regulations and guidance applicable to the UK. Any related warranty claim hereunder must be delivered in writing to Trecco Ltd within the above warranty period. Buyer’s sole and exclusive remedy (and Trecco Ltd’s sole and exclusive liability) for a warranty claim hereunder is limited to repair, replacement or refund at the sole option of Trecco Ltd.
6.3. Warranty Limitations for Medical Devices. Any warranty granted by Trecco Ltd with respect to the Medical Devices shall be deemed void if Buyer uses the Medical Device for non‐medical or entertainment use, other than in accordance with the manufacturer’s instructions and accepted medical practice and guidelines which relates to the Product or outside the Country of Delivery. All warranties are automatically void if Buyer transfers or sells the Medical Device to any third party without Trecco Ltd’s prior written consent.
6.4. Any warranty claims hereunder must be made in writing to Trecco Ltd within the above related warranty periods. Buyer’s sole and exclusive remedy (and Trecco Ltd ‘s sole and exclusive liability) for any such warranty claim is limited to Trecco Ltd ‘s obligation to repair the Equipment or Software, replace the Product or refund the Buyer, at the sole option of Trecco Ltd. Such remedies shall not extend the warranty period.
6.5. All other warranties, representations, terms and conditions (statutory, express, implied or otherwise) as to quality, condition, description, merchantability, fitness for purpose or non‐infringement (except for the implied warranty of title) are hereby expressly excluded. To the maximum extent permitted by applicable law, , Trecco Ltd hereby expressly disclaims, and buyer hereby expressly waives, any warranty regarding results obtained through the use of the products including, without limitation, any claim of inaccurate, invalid, or incomplete results.
6.6. Notwithstanding anything to the contrary herein, Trecco Ltd shall have no liability under any of its representations or warranties with respect to:
6.7. The warranties above excludes the following: (i) the repair, replacement, or disposal of any accessories included with, Trecco Ltd equipment; or (ii) consumable items or parts deemed necessary for the normal operation of the Equipment covered, including but not limited to, any other disposable supply or saleable items.
7.1. All intellectual property rights in the Products shall at all times remain vested in Trecco Ltd and/or its licensors. Any user license as may be granted to the Buyer under the Contract shall be non‐transferable and non‐exclusive and shall only be used for the Buyer’s own internal business purposes of operating the Products. Any such license shall terminate automatically on the termination or expiry of the Contract for whatever reason.
7.2. Where Buyer provides designs, drawings or specifications to Trecco Ltd to enable it to manufacture non‐standard or custom-made Products, Buyer warrants that such manufacture shall not infringe any intellectual property rights of any third party.
8.1. Training. Trecco Ltd will only provide training where it is specified on the purchase order. Trecco Ltd’s training does not guarantee that: (i) Buyer trainees are fully trained on Medical Device use, maintenance or operation or (ii) training will satisfy any licensure or accreditation. Buyer must ensure its trainees are fully qualified in the use and operation of the Medical Device. Unless otherwise identified in the purchase order training catalogue, Buyer will complete training within 12 months after: (a) if with a Medical Device purchase, the date of Medical Device delivery; (b) if with a Services purchase, the start date for Services; or (c) if with a training‐only purchase, the date training is ordered. If not done within this time period (other than because of Trecco Ltd’s fault), training expires without refund.
9.1. Either Party shall defend, indemnify, and hold harmless the other from and against any and all damages incurred or suffered by such indemnified Party arising, directly or indirectly, from any third party claims related to: (i) the breach by the indemnifying Party of any of its covenants, agreements, representations, warranties or other obligations in the Contract; or (ii) fraud, gross negligence or intentional misconduct by the indemnifying Party or its representatives in connection with the Contract. In addition,
9.2. Buyer shall defend, indemnify, and hold harmless , and its affiliates, and their respective representatives, from and against any and all damages incurred or suffered by Trecco Ltd or such persons arising, directly or indirectly, from: (i) any claim that the Buyer’s use of the Products infringes the intellectual property rights of any third party; (ii). medical diagnosis or treatment decisions; and/or (iii) use of the Product in a manner or environment, or for any purpose, for which Trecco Ltd did not design it, or in violation of Trecco Ltd’s written recommendations or instructions.
9.3. Notwithstanding any other term of this Section, the indemnifying Party shall not be liable for damages caused by the indemnified party. Neither Party will be responsible for any settlement of a suit or proceeding made without its prior written consent.
9.4. In no event shall, Trecco Ltd be liable for any indirect, consequential, exemplary, special, incidental or punitive damages of any kind however caused (including fault or negligence) arising out of or in connection with the contract or the contract, including the sale, installation, use or inability to use any product, including without limitation, data loss, loss of profits, goodwill or business interruption.
9.5. The total liability of Trecco Ltd arising under or in connection with the Contract or the Products, whether in contract, tort (including negligence), statute or otherwise shall, to the extent permitted by applicable law, BE LIMITED TO DAMAGES in an amount equal to the amount paid to Trecco Ltd under the Contract.
10.1. Each Party shall apply and obtain from any appropriate governmental authorities all relevant licenses, permits and approvals necessary for the performance of the Contract and shall bear all related costs arising therefrom.
10.2. Buyer and Trecco Ltd hereby agree that they shall not, except as expressly permitted by applicable laws, make any disposition by way of trans-shipment, re‐export, diversion or otherwise, of U.K. origin goods, or the direct product thereof, supplied by Trecco Ltd hereunder. Buyer hereby certifies that products, information or assistance furnished by Trecco Ltd or its affiliates hereunder shall not be used in the design, development, production, stockpiling or use of chemical, biological, or other weapons either by the Buyer or by any entity acting on the Buyer’s behalf.
10.3. Buyer shall not export the Equipment, Goods or any information or documents provided hereunder outside of the Country of Delivery without the requisite export license from the relevant body of the United Nations or other similar international organisation, the United States Government, the European Union, the country of origin or the original country of export. The Buyer shall furnish Trecco Ltd with copies of all documents relating to such export.
10.4. The obligations of the Parties to comply with all applicable export control laws and regulations shall survive any termination, or discharge of any other contract obligations.
11.1. Protected Health Information. If , Trecco Ltd creates, receives, maintains, transmits or otherwise has access to Protected Health Information as such term is defined in 45 C.F.R. § 160.103 (“PHI”), it will only use and disclose the PHI to perform their obligations under the purchase order and, as permitted by law and by the Business Associate Agreement between the parties.
11.2. Data Rights. Business Associate Agreement and its subcontractors may collect, prepare derivatives from and otherwise use non‐PHI (personal health information) data related to Products, Services and/or SaaS for such things as training, demonstration, research, development, benchmarking, continuous improvement and facilitating the provision of its products, software and services. Business Associate Agreement will own all intellectual property and other rights that could result from this collection, preparation and use. The non‐PHI data will not be used to identify Buyer or sold by Trecco Ltd without Buyer’s consent. , Trecco Ltd shall at all times comply with all laws and regulations applicable to the use of, access to and confidentiality of data.
11.3. VPN Security. Buyer must provide a VPN or equivalent should remote support be requested. Buyer is responsible for maintaining security of such VPN.
Each Party will treat the other Party’s proprietary information disclosed hereunder as confidential and will not use or disclose it to any third parties unless (a) permitted under the Contract, (b) mutually agreed upon by the Parties, or (c) required by law.
13.1. The Contract shall commence on the effective date set forth in the Trecco Ltd purchase order and shall continue in full force and effect for the Term set forth therein.
13.2. The Contract may be terminated by either Party:
that specifies any US Federal, US state, or US local government regulations, laws, requirements, obligations, or commitments applicable as a result of funding by a US Federal, US state, or US local government entity or agency, or the flow‐down of similar requirements from the Buyer’s customer’s contracts, are not applicable hereunder and are expressly rejected. In the event that any such requirements are found to apply, then the Parties agree that the only related requirements that may apply are set forth in Trecco Ltd’s online representations and certifications contained in the System for Award Management (“SAM”) found at http://www.sam.gov. With regard to any Buy American Act certifications, the country of origin for any products hereunder is as set forth in Trecco Ltd’s SAM certifications, or, if not set forth therein, the country of origin is considered unknown. Buyer agrees that all Products meet the definition of a “commercial‐ off‐the‐shelf” (COTS) item or a “commercial item” as defined in FAR 2.101. Trecco Ltd will use commercially reasonable efforts to provide the related documentation and information required under applicable purchase orders.
14.1. Assignment; Subcontracting. Neither Party may assign, delegate or otherwise transfer its rights and obligations in whole or part, or any right, remedy, obligation or liability arising hereunder or by reason hereof, except without the prior written consent of the other Party hereto. Notwithstanding, Trecco Ltd may assign its rights and obligations without Buyer’s consent to (i) one or more of its affiliates; or (ii) to a successor to, or Buyer of that portion of its business to which the Products pertains. Trecco Ltd may sub‐contract any part of its rights and obligations to an affiliate or third party as determined by Trecco Ltd,
14.2. Entire Agreement. Unless otherwise specified herein, the Contract represents the entire agreement between the Parties and supersede in their entirety all prior agreements concerning the subject matter hereof, and no modification, amendment, revision, waiver, or other change shall be binding on either Party unless consented to in writing by the Party’s authorized representative. Any oral or written representation, warranty, course of dealing, or trade usage not contained or referenced herein (including Buyer’s terms and conditions) shall not be binding on either Party.
14.3. Force Majeure. Neither Party shall be liable for any failure of or delay in performing any of its obligations under the Contract (other than any payment obligation), and neither Party shall be deemed to be in breach of any of its obligations hereunder, if such failure, delay or breach is due to any cause beyond the reasonable control of such Party, including, without limitation, war, terrorism, riots, fire, explosion, flood, earthquake, insurrection, embargo, strikes of employees, currency restriction, shortage of transport, inability to obtain power or fuel, general shortage of material, acts or omissions of governments in their sovereign capacity or failure of public utilities or common carriers.
The Parties expressly agree that any requirements, certifications or representations, referenced in any purchase order provided hereunder embargoes, shortage of or inability to obtain supplies (each, a “Force Majeure Event”). Such non‐performance will be excused for as long as such Force Majeure Event shall be continuing. The non‐performing Party shall give prompt written notice to the other Party of such Force Majeure Event. If the Force Majeure Event exceeds two (2) months, Trecco Ltd may immediately terminate the Contract without liability.
14.4 Immediately upon such Party providing written notice to the other Party if such other Party breaches any provision of the Contract in any material respect and (i) such breach is not capable of remedy, or (ii) fails to remedy such breach within thirty (30) days after the non‐breaching Party delivers written notice thereof to the breaching Party; or
Immediately upon written notice with respect to a Party in the event of (a) such Party’s insolvency, receivership, or voluntary or involuntary bankruptcy; (b) an assignment by such Party for the benefit of creditors; or (c) any substantial part of such Party’s property being or becoming subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within thirty (30) days thereafter.
14.5. In case of any open purchase order including custom Products, termination is subject to the payment of a termination fee by the Buyer.
14.6. Notices. All notices, requests and other communications to any Party hereunder shall be in writing and shall be given to Trecco Ltd or the Buyer, as the case may be.
14.7. Relationship. The relationship of the Parties hereunder is that of independent contractors. Nothing in the Contract shall be deemed to create a partnership, joint venture or similar relationship between the Parties.
14.8. Severability. If any provision of the Contract or the application thereof in any particular circumstance, is held illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provision hereof and the remaining provisions of the Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
14.9. Waiver. Failure by either Party hereto to enforce any rights under the Contract shall not be construed as a waiver of such rights nor shall a waiver by either Party hereto in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances.
14.10. Product‐Specific Terms and Conditions. Additional terms and conditions may govern the sale of certain Products, including, (“Product Specific Terms and Conditions”). Such additional terms and conditions are available from the sales offices of Trecco Ltd and shall take precedence in the event of any inconsistency with the Contract.
15. 1 The Contract shall be governed by and construed in accordance with the laws of England and Wales and the Parties hereby submit to the exclusive jurisdiction of the courts of the London, England
15.2. No Third-Party Beneficiaries. The Contract is entered solely by and between, and may be enforced only by, the Parties hereto (and their respective permitted successors and assigns) and, except to the extent expressly provided for herein, is not intended to confer on any other person any rights, remedies, obligations or liabilities under or by reason of the Contract
Bartle House
9 Oxford Court
Manchester, United Kingdom
M2 3WQ
Info@trecco.co.uk
