1. BASIS OF SERVICE / FITTING / TREATMENT
1.1 We consider that these Standard Terms and the fee estimate we have provided to you set out the whole agreement between you and us for the supply of the Prosthesis and services. Any changes to the Standard Terms that you agree with our authorised employees and agents will only be binding if recorded in writing. We only accept responsibility for statements and representations by our authorised employees and agents that are made in writing.
1.2 Any samples, or advertising we issue, and any illustrations contained in our catalogues, brochures or on our website are produced solely to provide you with an approximate idea of the Prosthesis they describe.
1.3 We have the right to revise and amend these Standard Terms from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities. You will be subject to the policies and terms in force at the date of supply of the products and services, unless any change to those policies or these Standard Terms is required by law or government or regulatory authority.
2. THE PROSTHESIS
2.1 We warrant that on delivery, and for a period of 12 months from the date of delivery, the Prosthesis shall:
(a) conform in all material respects with its description;
(b) be reasonably fit for the purpose we say the Prosthesis is fit;
(c) be free from material defects in design, material and workmanship; and
(d) comply with all applicable statutory and regulatory requirements for selling such prostheses in the United Kingdom.
2.2 This warranty is in addition to your legal rights if the Prosthesis is faulty or otherwise does not conform with these Standard Terms.
2.3 We do not warrant the fit of the socket because patient anatomy changes over time.
2.4 This warranty does not apply to any defect in the Prosthesis arising from fair wear and tear, wilful damage, accident, negligence by you or any third party, if you use the Prosthesis in a way that we do not recommend, your failure to follow our instructions, or any alteration or repair you carry out without our prior written approval.
2.5 When we supply a silicone cover for the Prosthesis we will take reasonable steps to match the silicone cover to your natural skin colour but we do not warrant that the silicone cover will be an exact match to your natural skin colour will change.
2.6 These Standard Terms apply to any refitted or replacement Prosthesis we supply to you in the unlikely event that the original Prosthesis is faulty or does not otherwise conform with these Standard Terms.
3. PROBLEMS WITH THE PROSTHESIS
3.1 In the unlikely event that the Prosthesis does not conform with these Standard Terms, please let us know as soon as possible after fitting. Once we have checked that the Prosthesis is not faulty, we will make adjustments to the Prosthesis within 90 days after the fitting as necessary. Faults will be repaired or the Prosthesis repaired free of charge but other adjustments will incur a fee in line with our published price schedule.
3.2 These Standard Terms will apply to any adjusted or replacement Prosthesis we supply to you.
3.3 Socket adjustments required more than 90 days after the fitting of the Prosthesis will be carried out in line with our published price schedule.
3.4 Any expenses incurred in visiting our premises for the purposes of fitting or adjustments are your sole responsibility. You will have to visit our offices as often as may be necessary.
3.5 Any complaints about any aspect of our service or treatment of you should be referred to the Clinic Operations Manager who will enquire into your complaint as soon as practicable and let you know the outcome in writing as soon as possible thereafter.
4. DELIVERY AND FITTING OF THE PROSTHESIS
4.1 You must co-operate with us and attend all appointments necessary for the fitting of the Prosthesis and comply fully with all instructions given to you for the use, care and maintenance of the Prosthesis.
4.2 We will take reasonable steps to meet the date given to you for the completion of the Prosthesis as set out in the Patient Confirmation or as otherwise agreed between us. However, occasionally production and fitting may be affected by factors beyond our control and so cannot be guaranteed. We will let you know if we become aware of an unexpected delay and will arrange a new date with you for delivery.
4.3 If you fail to keep appointments for the final fitting of the Prosthesis for more than 60 days after we notify you that the Prosthesis is ready we may, after giving you reasonable prior notice in writing, dispose of the Prosthesis and charge you the price referred to in the Quote.
5. RISK
The Prosthesis will be your responsibility and at your risk (in terms of loss or damage) from the time when the Prosthesis is completed and delivered to you and during any period when you are trialling the Prosthesis other than on our premises.
6. PRICE AND PAYMENT
6.1 The price of the Prosthesis, the making of the Prosthetic socket, any adjustments necessary within 90 days after fitting and the fitting service will be calculated in accordance with our price schedule. The price estimate set out in any written or verbal quote is an estimate and not a fixed price.
6.2 We may invoice you for the price or the balance of the price where a deposit has been paid on or at any time after completion of the Prosthesis. You must pay the invoice in cleared monies within 14 calendar days of the date of the invoice by cheque or by BACS.
6.3 If you do not make any payment due to us by the due date for payment (as set out in clause 6.3), we may charge you interest on the overdue amount at the rate of 4% a year above the base lending rate of Lloyds TSB Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with the overdue amount.
6.4 Clause 6.4 shall not apply for the period of the dispute if you dispute the payment owing in good faith and let us know promptly after you have received the invoice that you dispute it.
7. LIMITATION OF LIABILITY
7.1 Subject to clause 7.3 and clause 7.2, if either of us fails to comply with these Standard Terms, neither of us shall be responsible for any losses that the other suffers as a result, except for those losses which are a foreseeable consequence of the failure to comply with these Standard Terms.
7.2 Subject to clause 7.3, neither of us shall be responsible for losses that result from our failure to comply with these Standard Terms which fall into the following categories:
(a) loss of income or revenue;
(b) loss of profit;
(c) loss of business;
(d) loss of anticipated savings; or
(e) any waste of time.
7.3 Nothing in this agreement excludes or limits in any way our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
8. EVENTS OUTSIDE OUR CONTROL
8.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Standard Terms that is caused by events outside our reasonable control (Force Majeure Event).
8.2 A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks; or
(f) pandemic or epidemic.
8.3 Our obligations under these Standard Terms are suspended for the period that the Force Majeure Event continues, and we will have an extension of time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Standard Terms can be performed despite the Force Majeure Event.
9. ASSIGNMENT
We can transfer all or any of our rights and obligations under these Standard Terms to another organisation, but this will not affect your rights under these Standard Terms.
10. NOTICES
All notices sent by you to us must be sent to Proactive Prosthetics Limited at Innovation Place Douglas Drive, Surrey GU7 1JX. We may give notice to you at either the e-mail or postal address you provide to us. Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that the e-mail was sent to the specified e-mail address of the addressee.
11. GENERAL
11.1 If any court or competent authority decides that any of the provisions of these Standard Terms are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
11.2 If we fail, at any time while these Standard Terms are in force, to insist that you perform any of your obligations under these Standard Terms, or if we do not exercise any of our rights or remedies under these Standard Terms, that will not mean that we have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If we do waive a default by you that will not mean that we will automatically waive any subsequent default by you. No waiver by us of any of these Standard Terms shall be effective unless we expressly say that it is a waiver and we tell you so in writing.
11.3 A person who is not party to these Standard Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
11.4 These Standard Terms shall be governed by English law and we both agree to the non-exclusive jurisdiction of the English courts.