1. Definitions:
“Company” means Xelpov Surgical. “Contract” means the Order accepted by the Company and incorporating these conditions. “Customer” means the company, firm or organization who’s Order for the Goods is accepted by the Company. “Goods” means the goods which the Company agrees to supply in accordance with these conditions and which are identified on the Order. “Order” means the order for the purchase of the Goods submitted by the Customer. “Goods” means the goods agreed to be provided to the customs by Xelpov Surgical. “Quotation” means the quotation by Xelpov Surgical stating the price at which and the time period during which it will supply the goods to the customer. Any reference to a law is a reference to it as in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. Where a condition provides for a list of items following the word “including” or “includes”, then such list is not to be interpreted as being an exhaustive list.2. General:
2.1. Headings are purely for the ease of reference and do not form part of effect the interpretation of Conditions. 2.2. In the event of a conflict the contractual documents shall be applied in the following order:
a) The Quotation b) the Conditions
2.3. No other terms and conditions or warrantied are to be incorporated into the Contract unless agreed expressly in writing with Xelpov Surgical. In particular, the Customer’s terms and conditions are expressly excluded whether provided in full, referred to in other documents and whether before or after the Contract is formed.
2.4. Xelpov Surgical may update or amend these Conditions from time to time to comply with the law or to meet the changing business requirements without notice to the customer.
3. Ordering:
3.1. Each Order (whether submitted by telephone, fax, post, email or electronic ordering system) shall be deemed to be an offer by the Customer to purchase the Goods pursuant to these conditions. The Company may, at its complete discretion, refuse to accept any Order. The Contract will be formed upon confirmation of acceptance of the Customer’s purchase order by Xelpov Surgical.
3.2. The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including the description of the Goods ordered).
3.3. Samples and Free of Charge Goods; for the avoidance of doubt, where no order is placed and the Company provides Samples, to familiarize the Customer with the goods, as part of a sampling program or where the Company provides Free of Charge Goods to the Customer as part of a clinical trial or compassionate use program these conditions shall, to the extent applicable, apply to such Samples and Free of Charge Goods.
4. Prices:
4.1. The price is exclusive of VAT and all other applicable taxes and duties, which the Customer shall be additionally liable to pay the Xelpov Surgical or directly to relevant authorities e.g., local customs department etc.
4.2. All prices quoted are subject to change up to the date of delivery, subject to prior written notice by Xelpov Surgical
4.3. Xelpov Surgical reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost of Xelpov Surgical which is due to any factor beyond the reasonable control of Xelpov Surgical.
4.4. Errors on Xelpov Surgical website prices and availability of products and services are subject to change without notice. Errors will be corrected where discovered, and Xelpov Surgical reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your credit card charged. Xelpov Surgical shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. Xelpov Surgical shall have the right to refuse or cancel any such orders whether the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, Xelpov Surgical will issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account. If you are not fully satisfied with your purchase, you may return it in accordance with Xelpov Surgical Return Policy.
5. Delivery:
5.1. Delivery of the Goods shall be made to the delivery address specified as stated on the Pro Forma Invoice or communicated separately whichever is greater after the date of the Xelpov Surgical acceptance of the Order.
5.2. Xelpov Surgical reserves the right to withhold delivery of any Goods if any sum due under any contract with the Customer is overdue or if, in the reasonable opinion of Xelpov Surgical, the financial standing of the Customer has been impaired for any other reason.
5.3. Time for delivery shall not be of the essence and, Xelpov Surgical shall not be liable for any loss or damage whatever due to any failure by the Xelpov Surgical to deliver the Goods (or any of them) promptly or at all. The customer will have no right damages or to cancel the order for any failure to meet the delivery times stated.
5.4. The delivery of the Goods may happen by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contractor instalment.
5.5. The Customer shall take delivery of the Goods promptly whenever they are tendered for delivery (which shall include signing the relevant delivery note) If, for any reason, the Customer fails to take such delivery of the Goods or otherwise causes or requests a delay in delivery:
a) The Goods shall be deemed to have been delivered. b) Risk in the Goods shall pass to the Customer, and c) Xelpov Surgical shall be entitled to store or arrange for the storage of the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of such storage and any additional charges incurred in delivering the Goods at a later date.
5.6. The Customer shall ensure that adequate and safe facilities and procedures exist at the Customer’s premises for the delivery of the Goods.
5.7. The Customer shall immediately notify Xelpov Surgical Customer Support Centre if the Goods are not received within 10 days of the specified delivery date.
5.8. The customer outside of the USA, UAE & Pakistan shall be solely responsible for obtaining all import authorizations.
6. Warranties:
6.1. Xelpov Surgical will use reasonable endeavors to ensure that the Goods
a) Correspond to their description and any applicable specification. b) Be of satisfactory quality and fit for purpose held out by Xelpov Surgical or made to known to the customer by Xelpov Surgical c) Where applicable, be free from defects in design, materials and workmanship and remain so for a period of 12 months after delivery; and d) Comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of Goods
6.2. In case of Goods not manufactured by Xelpov Surgical:
a) Xelpov Surgical gives no assurance or warranty whatsoever that the sale or use of the Goods will not infringe the patent design right registered, design copyright or other industrial property rights of other person firm or Company and b) The warranty given to the Customer shall be limited to the warranty (if any) which Xelpov Surgical receives from the manufacturer or supplier of the Goods to Xelpov Surgical.
7. Missing and Defective Goods:
7.1. The Customer must inspect the Goods immediately on arrival at their premises.
7.2. In case of missing goods or defects apparent on inspection:
a) a written complaint must be made to Xelpov Surgical by the customer within seven days of receipt of the Goods specifying the shortage and/or defect and b) Xelpov Surgical shall be given an opportunity to inspect the Goods and investigate any complaint before any use is made of the Goods.
7.3. In the case of defects not apparent on inspection:
a) the Customer shall send a written complaint to Xelpov Surgical as soon as reasonably practicable after the defect is noticed and ensure no use is made of or alterations made to the Goods thereafter. b) the Customer shall allow Xelpov Surgical 30 days to inspect the Goods and shall take such steps as are necessary to enable Xelpov Surgical to do so including returning of the Goods to its head office in the USA if requested.
7.4. In any potential case of a product being defective pursuant to Part 1 of the Consumer Protection Act 1987, the customer must send the complaint within 12 months of the date of delivery by Xelpov Surgical or in the case of items not manufactured by Xelpov Surgical, within the guarantee period specified by the manufacturer of such item.
7.5. Any complaints made outside of the periods specified in clause 9 will not be considered.
7.6. All allegations of total non-delivery of any consignment of the Goods must be made by notice in writing by the customer to Xelpov Surgical within 10 days of the specified delivery date. Failure by the Customer to give such notice shall render the Customer liable for any temporary or permanent loss of the Goods and all additional costs and expenses incurred by Xelpov Surgical in relation to such loss.
8. Our Liability:
8.1. Save where Goods manufactured by Xelpov Surgical are held to be defective, Xelpov Surgical sole obligation in the event of any missing or defective Goods, shall be to repair or replace the Goods.
8.2. Xelpov Surgical shall not be liable in respect of consequential loss, loss of profits, damage to the property, loss of goodwill, loss of business opportunity, wasted expenditure, cost of mitigation arising out of or occasioned by any fault or defect in the Goods supplied or any other losses howsoever caused.
8.3. The maximum total liability under or arising out of in connection with this Agreement will not exceed the total of the Contract value.
8.4. Nothing in this Agreement shall exclude or limit either party’s liability for death or personal injury resulting from negligence or their fraudulent acts, omissions or statements or for infringement of third party’s intellectual property rights.
9. Return of Goods:
9.1. In cases where Goods are not defective and the customer requests to return the Goods, Xelpov Surgical shall be under no contractual obligation to accept the return except in the event of any error on its parts as to the amount or type of Goods delivered.
9.2. Any requests to return must be made to Xelpov Surgical’s Customer Support Centre within ten working days of the date of actual delivery.
9.3. The return of Goods to correct an error in delivery or ordering will only be considered if the Customer Care Team is notified immediately or in any event within 48 hours of delivery to the Customer. Goods must be returned to Xelpov Surgical within 5 days of delivery to the customer to correct an error in delivery or ordering.
9.4. For the avoidance of doubt, unless defective, the returns of Goods as detailed in sections 11.2, 11.4, 11.5 and 11.6 must be unused, undamaged and in the original packaging. The Goods must be the same batch as originally supplied by Xelpov Surgical and are not falsified/counterfeit. All goods are individually assessed by Xelpov Surgical before being authorized to return.
9.5. Return of Goods for any reason shall require prior consent from Xelpov Surgical which shall be sent solely at the discretion of Xelpov Surgical. To obtain consent, the Customer Care Team must be notified. Consideration to requests for a return may be given if:
a) of a bona fide nature. b) made within 10 working days of the actual delivery, and c) unless defective, the Goods must be unused, undamaged and in the original undamaged packaging. The Goods must be the same batch as originally supplied by Xelpov Surgical and not falsified/counterfeit.
9.6. On the customer contacting Xelpov Surgical to request a return, the Customer will be issued with a returns merchandise authorization number by Xelpov Surgical. Goods returned without the prior written approval of Xelpov Surgical may be returned to the customer or disposed of at the absolute discretion of the company.
9.7. Goods returned will be subjected to the following charges:
a) all delivery charges & custom duties are responsibility of customer only. b) for returns of small parcel there will be a minimum $15.00 charge per parcel and a 15% re-stocking charge. c) the event of return resulting from an error on the part of Xelpov Surgical in relation to the amount or type of Goods delivered, Xelpov Surgical is no liable for any charges whatsoever.
9.8. In the event, that any Goods are subject to be called by Xelpov Surgical for the purpose of recall, the customer shall provide to Xelpov Surgical as much information as it is reasonably possible regarding the whereabouts of the Goods.
10. Cancellation Policy:
10.1. In the event of cancellation before delivery and if returned after delivery where products are not defective, there will be a re-stocking charge of not less than 15% of the invoice value charged by Xelpov Surgical.
10.2. Cancellation of an order will only be agreed by Xelpov Surgical at its sole discretion, on condition that all costs and expenses incurred by Xelpov Surgical up to the time of cancellation and loss of profits and other loss or damage resulting to Xelpov Surgical of such cancellation will be reimbursed by the Customer to Xelpov Surgical forthwith.
11. Specifications:
Xelpov Surgical reserve the right to alter or change the specification and dimension of the Goods supplied with reasonable limits having regard to the nature of the Goods. These do not materially affect the quality or fitness for purpose of Goods. Dimensions specified by Xelpov Surgical are to be treated as an approximate only unless the Customer specifically states in writing that exact dimensions are required. Our website and catalogues display the product images as accurately as possible, However, Xelpov Surgical cannot guarantee the finish/colour you see matches the actual product as the display of the finish and or colour depends in part, upon your monitor and its settings.
12. Marking and Instructions:
12.1. No name, mark, numbering, coloring, appearance or log on the goods will be obscured, removed or concealed by the Customer
12.2. The Customer will not repackage or alter the presentation of Goods and it will not assist, cause, or enable any other party to do any of the said acts or deal in Goods or packaging which have been subject to such acts.
12.3. The Customer acknowledges that it is under a duty to pass on to its customers (where appropriate) all instructions, information and warnings supplied by Xelpov Surgical with the Goods.
13. Force Majeure:
13.1. Xelpov Surgical shall not be responsible for any failure to fulfil its obligations under these conditions and/or in relation to the Goods if such failure is caused by an event which is beyond its reasonable control including acts of God, war, armed conflict, acts of terrorism, riot, strikes, industrial action (including action involving Xelpov Surgical employees), fire, flood, any natural disaster, any defaults by Xelpov Surgical suppliers or subcontractors, difficulties obtaining workmen or materials, and breakdown of machinery.
13.2. If such event continues for more than one month, Xelpov Surgical may terminate the Contract without liability.
14. Waiver
14.1. Waiver of any right or remedy under the contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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. 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. Severance
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 whilst retaining the risk and reward between the parties. If such modification is not possible, the relevant provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16. Governing Law and Jurisdiction:
16.1. The contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including not-contractual disputes or claims) shall be governed by and construed in accordance with the law of Pakistan.
16.2. Each party irrevocably agrees that the courts of Sialkot, Pakistan shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with his agreement or its subject matter or formation (including non-contractual disputes or claims).
16.3. The schedules to the Uniform Law of International Sales Act 1967 shall not in any circumstances apply to the contract.
