1. DEFINITIONS
In these Conditions the following expressions shall have the following meanings:
1.1. ‘the Company’ means Fertility Focus Ltd;
1.2. ‘Goods’ means the articles or things or any of them described in the Contract;
1.3. ‘the Buyer’ means the person, firm or company with whom the Contract is made by the Company, whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such person firm or company;
1.4. ‘Company’s Premises’ means the premises mentioned in the Company’s quotation or other contractual document or if not so mentioned means the Company’s offices at Integer House, Coped Hall Business Park, Royal Wootton Bassett, Swindon, Wiltshire SN4 8DP;
1.5. ‘the Contract’ means the items sold via the “Cart” on the user login on the Company Websites, the Company’s quotation for the sale or supply of the Goods, and any document referred therein, these Conditions of Sale, the Company’s acknowledgement of the Buyer’s order for the Goods and the Buyer’s order for the Goods, and if there shall be any inconsistency between the documents comprising the Contract they shall have precedence in the order herein listed.
1.7. ‘Countries’ means the countries from which orders for Goods can be placed, and to which orders can be shipped as identified in Schedule 1 of these terms and conditions.
2. GENERAL
2.1 The Buyer understands that by ordering the Goods, they agree to be bound by these terms and conditions. The Buyer understands that if they do not accept these terms and conditions, they will not be able to order Goods from the Company.
2.2. These conditions shall be deemed to be incorporated in all contracts of the Company to sell Goods and in the case of any inconsistency with any order letter or form of contract sent by the Buyer to the Company or any other communication between the Buyer and the Company whatever may be their respective dates the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on behalf of the Company. Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract. If in any particular case any of these conditions shall be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
2.3 The information provided on the Company Websites is for information purposes only and is not a substitute for professional medical advice, and such advice should always be sought prior to the personal use of the Goods, or in the case of concerns regarding such use. Fertility Focus Ltd is not responsible or liable, directly or indirectly for any form of damages whatsoever resulting from the use, misuse or reliance on information contained in or implied by information its websites (named above) or data obtained from Goods.
2.4 The Buyer understands that in the case of OvuSense Readers issued as part of a rental or returned to the company for whatever other reason, the temperature and other data (“Results”) stored on the OvuSense Reader is owned by the Company. The Results may be downloaded from the Reader once returned and be held in a fully anonymous format so they cannot be traced to the original user. The Buyer understands that the Results can be used by the Company in any way including but not limited to freely using, reproducing, publishing and/or distributing the Results for any purpose commercial or otherwise.
3. ORDERS
3.1. Unless verbal, telephone or telegraphic orders and any variations to orders are confirmed in writing by the Buyer the Company shall not be responsible for errors or subsequent misunderstandings.
3.2. Notwithstanding that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
4. PRICES
4.1. The price payable for Goods shall, unless otherwise stated by the Company in writing and agreed on its behalf, be the list price of the Company current at the date of despatch.
4.2. All prices for the OvuSense product, unless otherwise stated are inclusive of Value Added Tax charged at the appropriate rate. All prices for the FertiloScope product are exclusive of Value Added Tax or other sales tax. This will be charged at the appropriate rate.
4.3. Subject to other contractual commitments, for quotations and orders placed on credit terms the Company’s prices are subject to adjustment to take account of any variation in the Company’s costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alterations of duties and other costs since the date of the Company’s quotation or (if no quotation is issued) the Buyer’s order. For orders placed on credit terms, the Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted. The invoice so adjusted shall be payable as if the price set out therein were the original contract price.
5. TERMS OF PAYMENT
5.1. Unless otherwise stated by the Company in writing and recorded on the Company’s acknowledgement of order, payment shall be made in advance for all Goods save that payment shall become due in any event forthwith upon the occurrence of any of the events referred to in Condition 13 hereof.
5.2. Without prejudice to any other rights it may have, the Company is entitled to charge interest at 2% above the then Current Base Rate of HSBC PLC on overdue payments of the price of the Goods.
6. DELIVERY
6.1. All times or dates given for delivery of the goods are given in good faith but without any responsibility on the part of the Company. Time of delivery should not be of the essence of any Contract nor shall the Company be under any liability for any delay beyond the Company’s control.
6.2. Delivery of the Goods shall be limited to Buyer’s who are over the age of 18, legally able to enter into the Contract, resident in, and (where applicable) accessing the Company Websites from one of the Countries listed in the Schedule 1 of these terms and conditions
6.3. Where the Goods are handed to a carrier for carriage to the Buyer or the United Kingdom port for export any such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purposes of Sections 44, 45, and 46 of the Sale of Goods Act 1979.
6.4. The Buyer agrees that Section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Company.
6.5. No liability for non-delivery loss of or damage of the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the Contract will attach to the Company unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for non-delivery loss or damage with a copy to the carrier if the Company’s own vehicles have not been used to deliver the Goods): (a) within seven days of delivery for loss damage or non-compliance with the Contract or (b) within ten days of the date of the invoice for non-delivery.
6.6. In the event of a valid claim for non-delivery loss damage or non-compliance with the Contract the Company undertakes at its option either to repair or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery loss damage or non-compliance.
6.7. If the Buyer shall fail to give notice in accordance with condition 6(5) above the Goods shall be deemed to be in all respects in accordance with the Contract. Without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly.
7. ORDERING & CONTRACTS COMPANY WEBSITES
Some Goods can be ordered using the “Cart” mechanism on the Company Websites. The Contract is formed by the following steps. The Buyer fills the “Cart” with the required items and clicks on the “Continue Checkout” button. The Buyer then enters payment details on the subsequent PayPal screen. An order acknowledgement is sent to the Buyer via email. Once the payment has been received and the order accepted, the Goods will be dispatched, at which point the Contract is in place.
8. CONSUMER RIGHTS & RETURNS POLICY
8.1 Goods supplied via the Company Websites are subject to certain consumer rights. The Buyer in this case may cancel a Contract at any time within seven working days, starting on the day after the Buyer receives the Products. To cancel a Contract, arrangement for return of goods must be made in writing through the company email address:
service@fertility-focus.com. Goods must be returned unopened in their original packaging and in the same condition in which the Buyer receives them. The Buyer shall then either arrange for immediate return of the Goods to the Company’s Premises at their own expense, or an appropriate collection will be arranged by the Company with the collection fee charged to the Buyer at cost. The cost of the Goods shall be fully refunded to the Buyer upon confirmation of receipt of the Goods at the Company’s Premises deemed to be in an appropriate unopened condition.
8.2 In the case of Goods supplied on a Rental Contract, the Buyer shall be obliged to retain original packaging supplied with the Goods. At the end of the Rental Contract, the Buyer shall contact the Company in writing via the email address:
service@fertility-focus.com to arrange for collection. The Goods must be returned to the Company’s Premises in the original packaging under instructions supplied at the time by the Company. Goods shall be subject to a final check at the Company’s Premises and any deposit paid shall be returned in full as long as the Goods are deemed to be subject to no damage other than reasonable wear and tear.
8.3 Otherwise, Goods supplied in accordance with the Contract cannot be returned without the Company’s prior written authorisation given with an appropriate Returned Materials Authorisation (RMA) number. Arrangement for return of goods shall be made through the company email address:
service@fertility-focus.com. Duly authorised returns shall be sent to the Company’s Premises at the Buyer’s expense, unless the Goods are deemed by the Company’s RMA process to be faulty, in which case the Goods shall be returned to the Company’s Premises at the Company’s expense.
8.4 Refunds wherever practicable shall be made using the original method of payment.
Note: it shall be at the sole discretion of the Company whether it chooses to accept returns of opened or partially opened Goods, and in no cases shall the Company be liable to accept returns or refund Goods where a sterile seal or internal packaging seal has been broken.
9. PACKING AND CARRIAGE
Unless otherwise stated at time of purchase, Goods ordered via Company Websites and carriage.
10. PASSING OF TITLE AND RISK
10.1. From the time of delivery the Goods shall be at the risk of the Buyer who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Company until all payments under the Contract have been made in full and unconditionally. Whilst the ownership of the Company continues the Buyer shall keep the Goods separate and identifiable from all other goods in its possession on behalf of the Company.
10.2. In event of failure to pay the price in accordance with the Contract, the Company shall have power to resell the Goods. Such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purposes the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods.
11. CONDITIONS AND WARRANTIES
11.1. The Contract shall not constitute a sale by description or sample.
11.2. Any conditions or warranties (whether express or implied by statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality of the Goods or their fitness for any particular purposes (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly negatived.
12. DEFECTIVE GOODS
12.1. In sole respect of Goods supplied by the Company that are not subject to a shelf life or expiry date; In substitution for all rights which the Buyer would or might have but for these Conditions the Company undertakes that if within twelve months of delivery of such other Goods a defect under proper use appears therein (fair wear and tear expected) and arising solely from faulty design, materials or workmanship (excluding any electrical component) it will at its own discretion, provided the Goods have been accepted and paid for by the Buyer, repair or replace them or supply new parts therefore and shall return them by parcel post free of charge in order to exercise its rights under this condition. The Buyer shall inform the Company as soon as practicable after the date which such defect appeared.
12.2. In sole respect of Goods supplied by the Company that are not subject to a shelf life or expiry date, In the case of Goods not manufactured by the Company, the Company will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company’s supplier provided that the Goods have been accepted and paid for.
12.3. Nothing herein shall impose any liability on the Company in respect of any defect in the Goods arising out of the acts, omissions negligence or default of the Buyer its servants or agents including in particular without prejudice to the generality of the foregoing any failure by the Buyer to comply with any recommendations of the Company as to storage and use of the Goods (including without limitation any instructions provided by the Company as to the calibration of the Goods).
12.4. Nothing herein shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence in so far as the same is prohibited by United Kingdom statute.
13. CONSEQUENTIAL LOSS
The Company shall not be liable for any costs claims or damages or expenses arising out of any act of tort or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals by reference to accrual of such costs, claims, damages or expenses on a time basis.
14. DEFAULT ON INSOLVENCY OF THE BUYER
If the Buyer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Buyer’s property or assets or if the Buyer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Buyer is a company) if any Resolution or Petition to wind up such company shall be passed or presented or if a Receiver of the whole or any part of such company’s undertaking property or assets shall be appointed, the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Buyer or may (without prejudice to the Company’ s right subsequently to determine the contract for the same cause should it so decide) by notice in writing suspend further deliveries of Goods until any defaults of the Buyer be remedied.
15. LIMITATION OF LIABILITY
The liability of the Company to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Goods.
16. REPRESENTATIONS
No statement description information warranty condition or recommendation contained in any catalogue price list advertisement or communication or made verbally by any of the agents or employees of the Company shall be construed to enlarge, vary or override in any way any of these conditions.
17. FORCE MAJEURE
The Company shall be entitled to delay or cancel delivery or to reduce the amount or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including but not limited to strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal source of supply.
18. HEADING
The headings in these conditions are intended for reference only and shall not affect their construction.
19. PROPER LAW
The Contract shall in all respects be governed by English Law and shall be deemed to have been made in England and the Buyer and the Company agree to submit to the non-exclusive jurisdiction of the English Courts.
SCHEDULE 1 - COUNTRIES
The OvuSense product can currently be ordered directly from and shipped to the following jurisdictions: Austria, Bulgaria, Germany, Greece, Ireland, Liechtenstein, Latvia, Malta, Netherlands, Switzerland (German only), United Kingdom. For all other countries please enquire by sending an email to:
service@fertility-focus.com
The FertiloScope product can only be ordered via an authorised distributor of Fertility Focus Ltd. Please enquire by sending an email to:
service@fertility-focus.com.