GE Healthcare / Terms and Conditions of Sale EMEA / Saudi...

GE Healthcare / Terms and Conditions of Sale EMEA / Saudi...
GE Healthcare / Terms and Conditions of Sale EMEA / Saudi Arabia
1.
GENERAL
1.1 In these Terms and Conditions:
The Buyer means the person, firm, company or other organization who or
which has ordered Products and/or Services from GEHC;
GEHC means the GE Healthcare group company referred to in the final
written offer, quotation or order acknowledgement or, if none, the GE
Healthcare company making the supply;
The Contract means the contract for the sale and purchase of Products
and/or Services between GEHC and the Buyer as may be further evidenced
by GEHC’s final written offer, quotation or order acknowledgement and no
prior proposals, statements, representations or conditions will be binding
on either party;
The Equipment means all electronic equipment, hardware and other
electronic or mechanical items agreed to be supplied by GEHC, excluding
any consumables and spare parts sold separately;
The Goods means all items agreed to be supplied by GEHC other than the
Equipment and Software;
The Products means any Goods, Equipment or Software agreed to be
supplied by GEHC; and
The Services means all advice given and services performed by GEHC; and
The Software means any firmware, software or data compilations
(i) identified in the Contract or (ii) provided to Buyer by GEHC in connection
with installation or operation of the Equipment. For the avoidance of doubt,
Software shall not include any "open source" firmware, software or data
compilations, as any such "open source" firmware, software or data
compilations will be subject to the terms and conditions set out in the
relevant "open source" license.
1.2 These Terms and Conditions shall be incorporated into the Contract
and shall apply to the exclusion of any conditions of the Buyer. These
Terms and Conditions may not be varied or waived except with the
express written agreement of GEHC. The failure of GEHC 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.
2.
PRICES AND QUOTATIONS
The price of the Products and/or Services will be GEHC's quoted price,
inclusive of any duties, but exclusive of value added or other taxes. All
quotations issued by GEHC for the supply of Products 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 GEHC´s then current pricelist, which may include
charges for handling, freight, packaging, insurance and minimum orders.
3.
PAYMENT
3.1 Unless otherwise agreed in writing, payment in full shall be made to
GEHC in the currency invoiced, no later than thirty (30) days from the date
of invoice.
3.2 In the event of late payment, GEHC reserves the right:
(i)
to suspend deliveries and/or cancel any of its outstanding
obligations; and
(ii)
to charge interest at the lower of (a) an annual rate equal to twelve
(12) % and (b) any applicable maximum statutory rate on all unpaid
amounts calculated on a day to day basis until the actual date of
payment.
4.
CHANGES AND RETURNS
4.1 GEHC reserves the right, subject to prior written notice, to make any
change in the specification of the Products, which does not materially
affect the installation, performance or price thereof.
4.2 Products may only be returned with prior authorization from GEHC.
5.
DELIVERY/INSTALLATION/ACCEPTANCE
5.1 Any term of delivery shall be construed according the latest edition of
Incoterms. If no other term of delivery has been specified in the Contract
the Products will be delivered CIP to Buyer’s premises or to the agreed
destination.
5.2 Partial deliveries shall be permitted. If the Buyer fails to accept
delivery of the Products within a reasonable period after receiving notice
from GEHC that they are ready for delivery, GEHC may dispose of or store
the Products at the Buyer's expense.
5.3 GEHC will use all reasonable endeavors to avoid delay in delivery on
the notified delivery dates. Failure to deliver by the specified date will not
be a sufficient cause for cancellation, nor will GEHC be liable for any loss or
damage due to delay in delivery.
5.4 The Buyer shall notify GEHC in writing within five (5) working days of
delivery of any short delivery or defects reasonably discoverable on careful
examination. GEHC’s sole obligation shall be, at its option, to replace or
repair any defective Products or refund the purchase price of any
undelivered Products.
5.5 Where delivery of any Product requires an export license or other
authorization before shipment, GEHC shall not be responsible for any delay
in delivery due to delay in, or refusal of, such license or authorization.
5.6 Where the Equipment requires installation, the Buyer shall be
responsible at its own cost for making the place where the Equipment will
be located ready for installation in accordance with GEHC’s instructions.
Installation will not begin unless such responsibilities are completed.
5.7 Following installation, and where applicable, GEHC will proceed with
final testing using GEHC’s published 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) GEHC 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 GEHC’s obligations under the Contract. In any
event Buyer agrees that the Equipment is accepted (i) seven (7) days after
the date on which GEHC notifies Buyer that final testing was successfully
completed, or issues the Test Certificate or (ii) on the date Buyer first uses
the Equipment for operational use, whichever is earlier.
5.8 Buyer, at its reasonable request, 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, if Buyer failed to attend when
advised that testing was to take place.
5.9 Where Products are supplied by GEHC in returnable containers, these
must be returned at the Buyer’s expense and in good condition, if
requested by GEHC. Title to these containers shall remain with GEHC at all
times, but they shall be held at the risk of the Buyer until returned to GEHC.
Failure by the Buyer to comply with the above provision shall entitle GEHC
to invoice the Buyer for the full replacement value of the containers.
6.
RISK AND TITLE
6.1 The risks of loss of and damage to the Products shall transfer to
Buyer in accordance with agreed delivery term. Full title to the Goods and
Equipment shall pass to the Buyer on full payment.
6.2 In relation to any Equipment used for clinical or diagnostic purposes,
the Buyer shall keep adequate written records of the identity of any person
or entity to whom the Equipment is transferred and of the location of such
Equipment and shall procure that any purchaser of such Equipment is
subject to the same requirement in respect of any onward sales.
7.
SERVICES
7.1 Where GEHC is to provide Services, the Buyer shall ensure that
adequate and safe facilities exist at its premises and that GEHC is properly
notified of any relevant regulations.
7.2 If the Buyer has purchased a Product or Service including remote
access support, the Buyer shall permit GEHC to connect to the Products by
remote access as may be beneficial to the performance of maintenance or
repair activities as part of GEHC’s warranty obligations or otherwise. This
may include automatic software downloads and proactive monitoring and
access to performance data related to the products, to gather and use
products- and resource usage data in various ways such as product
development, quality initiatives, benchmarking and reporting services. The
data collected by GEHC will be used, during and after the term of this
agreement, in accordance with all applicable laws and regulations and in a
manner that will maintain confidentiality.
8.
RESTRICTED USE
8.1 With respect to certain Products, use restrictions are a condition of
the purchase which Buyer must satisfy by strictly abiding by the restriction
as set forth in GEHC's catalogue and/or on the Product and/or
accompanying documentation. Buyer is solely liable to ensure compliance
with any regulatory requirements related to the Buyer's use of the
Products. Any warranty granted by GEHC to the Buyer shall be deemed
void if any Products covered by such warranty are used for any purpose
not permitted hereunder. In addition, the Buyer shall indemnify GEHC and
hold GEHC harmless from and against any and all claims, damages, losses,
costs, expenses and other liability of whatever nature that GEHC suffers or
incurs by reason of any such unintended use.
8.2 With respect to Products regulatory approved for clinical and
medical treatment and diagnostic use, any decisions relating to such
treatment and use shall be at the risk of the Buyer and the respective
healthcare providers.
9.
GENERAL WARRANTY
9.1 Section 9.2-9.5 shall apply in the event no other specific warranty has
been agreed in the Contract. As regards any Products covered by a
warranty issued by a third party manufacturer, such warranty terms shall
apply to the exclusion of Section 9.2-9.5.
9.2. Goods - GEHC warrants that its Goods meet GEHC’s specifications at
the time of delivery. All warranty claims on Goods must be made in writing
within ninety (90) days of receipt of the Goods. GEHC’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 GEHC.
9.3 Equipment - GEHC’s Equipment of its own manufacture is warranted
from date of delivery or GEHC completing any agreed installation works, if
later, to be free of defects in workmanship or materials under normal
usage for a period of one (1) year and any claim shall be submitted in
writing within such period. GEHC’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 GEHC. Such repairs or replacement will not
extend the warranty period.
9.4 Software – GEHC warrants, for a period which is the longer of:
(i)
three (3) months from the date of delivery or;
(ii)
in the event the Software is intended to be installed and run on
GEHC’s Equipment of its own manufacture, twelve (12) months from
the date of delivery,
that the Software substantially conforms to its published specifications
and that the media on which the Software resides will be free from defects
in materials and workmanship under normal use and any claim shall be
submitted in writing within such period. GEHC does not warrant that the
Software is error free or that Buyer will be able to operate the Software
without problems or interruptions. GEHC´s sole liability and Buyer’s
exclusive remedy in the event of breach of this warranty is limited to repair,
replacement or refund, at the sole option of GEHC.
9.5 Services - GEHC warrants that all Services will be carried out with
reasonable care and skill. GEHC’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.
9.6 To the maximum extent permitted by applicable law GEHC 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. 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.
9.7 Unless expressly agreed, GEHC is not obliged to carry out dismantling
or re-installation of any Product in connection with any warranty claims.
10. LIMITATION OF LIABILITY
10.1 GEHC shall have no liability under the warranties contained in
Section 9 in respect of any defect in the Products arising from:
specifications or materials supplied by the Buyer; fair wear and tear; willful
damage or negligence of the Buyer or its employees or agents; abnormal
working conditions at the Buyer's premises; failure to follow GEHC's use
restrictions or instructions (whether oral or in writing); misuse or alteration
or repair of the Products without GEHC's approval; or if the Buyer is in
breach of its payment obligations under this Contract.
10.2 Subject to any express obligation to indemnify, 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 Product or Service, nor for, without limitation, loss of profits, goodwill
or business interruption.
10.3 The total liability of GEHC 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 GEHC under the Contract.
10.4 The exclusion of liability in these Terms and Conditions shall only
apply to the extent allowed according to applicable law.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Where the Buyer supplies designs, drawings, and specifications to
GEHC to enable it to manufacture non-standard or custom made Products,
the Buyer warrants that such manufacture will not infringe the intellectual
property rights of any third party.
11.2 All intellectual property rights in the Products and/or Services shall at
all times remain vested in GEHC or its licensors.
12. HEALTH AND SAFETY
The Buyer shall ensure that:
(i)
the Products (provided such Products comply with its specifications)
are suitable and safe for the Buyer’s intended use;
(ii)
the Products are handled in a safe manner.
(iii) containers, packaging, labeling, equipment and vehicles, where
provided by the Buyer, comply with all relevant national and
international safety regulations.
14. INSOLVENCY
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
reconstruction or amalgamation), GEHC shall be entitled immediately to
Document: Terms & Conditions of Sale
15. FORCE MAJEURE
15.1 A party shall not be liable in respect of the non-performance of any
of its obligations to the extent such performance is prevented by any
circumstances beyond its reasonable control including but not limited to,
strikes, lock outs or labour disputes of any kind (whether relating to its own
employees or others), fire, flood, explosion, natural catastrophe, military
operations, blockade, sabotage, revolution, riot, civil commotion, war or
civil war, acts or threats of terrorism, plant breakdown, computer or other
equipment failure and inability to obtain equipment.
15.2 If an event of force majeure exceeds one (1) month a Party may
cancel the Contract without liability.
16. SOFTWARE LICENSE
Unless a separate software license agreement has been concluded
concerning the Software, the Buyer is hereby granted a non-exclusive
license to use the Software solely in object code format and solely for its
own internal business purposes subject to the terms contained herein. The
Buyer shall not (i) use the Software for purposes other than those for which
it was designed; (ii) use the Software in connection with other
manufacturers' products unless such connectivity is authorized in the
Product documentation; (iii) grant, assign, transfer, or otherwise make
available to third parties any right whatsoever in the Software; (iv) disclose
to third parties any information contained in the Software; (v) copy or
reproduce the Software (except for one copy for back-up purposes or as
may otherwise be permitted by applicable law); (vi) alter or modify the
Software; or (vii) reverse engineer, decompile, disassemble or create any
derivative works based upon the Software except as expressly permitted
by mandatory law.
17. EXPORT CONTROL
The Buyer undertakes not to re-export the Products without the requisite
export license from the relevant body of the United Nations or other similar
international organization, the United States Government, the country of
origin or the original country of export. The requirement to obtain a license
may vary depending on the country of destination, the end user, the end
use and other factors. Upon request from GEHC the Buyer shall furnish
GEHC with copies of all documents relating to such re-export.
18. WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)
18.1 Where the Buyer sells, disposes of or otherwise transfers the
Equipment to any third party and where this would unreasonably increase
the cost of the collection, treatment or recycling of the Equipment for
GEHC under applicable WEEE legislation, Buyer shall be liable to GEHC and
indemnify GEHC for such increased costs.
18.2 Should the Equipment that Buyer acquires from GEHC be Equipment,
which is intended to replace on a 'like for like'-basis, any item of Buyer’s
existing equipment (e.g. the new Equipment is of an equivalent type or is
fulfilling the same function as Buyer’s existing equipment) Buyer must in
respect of such existing equipment have clearly indicated to GEHC the
following: the brand, type, age, condition, current use and the exact
location and all other relevant information. In the event Buyer has not
complied with such obligations, GEHC may charge Buyer such reasonable
additional fees to reflect any related obligations it may have under
national legislation regarding the recycling, reuse and/or disposal of such
existing equipment and related costs it may incur.
18.3 Unless the relevant mandatory national legislation provides
otherwise, or unless otherwise agreed in writing, GEHC´s obligation does
not include without limitation, creation of physical access to the equipment;
de-installation; decoupling; disinfecting; craning/lifting; transportation to a
ground level loading area or -ramp; packing; or any related similar
activities; and Buyer agrees to perform such activities at its own cost as
and when required.
19. GOVERNING LAW
This Contract shall be governed by and construed in accordance with the
substantive laws of the country or state where the GE Healthcare group
company (or relevant branch) office referred to in the Contract is situated
and the parties hereby submit to the non-exclusive jurisdiction of the
courts of that country or state.
13. INDEMNITIES
Except where a claim arises as a direct result of the negligence or breach
of contract of GEHC, the Buyer shall indemnify GEHC in respect of any
claim which may be made against GEHC:
(i)
arising in connection with the Buyer’s unintended use of the Products;
(ii)
alleging that the Buyer’s use of the Products infringes the intellectual
property rights of any third party.
Company:: GE Healthcare
terminate the Contract without notice and without prejudice to any other
rights of GEHC hereunder.
20. PRODUCT-SPECIFIC TERMS AND CONDITIONS
Additional terms and conditions govern the sale of certain Products and
Services. These additional terms and conditions are available from the
sales offices of GEHC and shall take precedence in the event of any
inconsistency with these Terms and Conditions.
21. TRANSLATIONS AND LOCAL VARIATIONS
Translations of these terms and conditions are available from the sales
offices of GEHC. In some territories, local variations to these Terms and
Conditions may apply. If so, such variations shall take precedence in the
event of any inconsistency with these Terms and Conditions.
Territory: Saudi Arabia
Language: English
Issued: January 2009
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