Terms and Conditions
The customer's attention is drawn in particular to the provisions of clauses 7 and 9
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Consumer: as defined in regulation 4 of Consumer Contract Regulations 2013, as amended from time to time.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Product in accordance with these Conditions.
Customer: the person, firm or company who purchases the Product from the Supplier.
End User: the person who will personally receive the benefit of the Product.
Force Majeure Event: has the meaning given in clause 10.
Initial Payment: £400 which is a non-refundable payment which will cover the Trial Period only.
Manufacturer: cerbomed GmbH
NEMOS® Instructions: the instructions in respect of the operation of the Product.
Order: the Customer’s order for the Product(s).
Payment Method: debit card or credit card, unless otherwise agreed.
Payment Plan: a plan available to a Customer in which payments are made as follows:
(a) the Initial Payment, followed by;
(b) 18 monthly debit or credit card payments of £129.78;
Product: the NEMOS® epilepsy treatment therapy device (reference code NEMOSLBL-0049).
Questionnaire: the patient feasibility questionnaire can be used to assist the End User’s GP, consultant or epilepsy nurse in their decision to recommend the treatment envisaged through use of the Product by the End User. The Customer can request a hard copy from the Supplier.
Medical Recommendation Form: the medical recommendation form which must be completed by each End User’s GP or epilepsy nurse and returned to the Supplier before the Product is despatched. (This can be downloaded by the Customer from the Supplier’s Website or alternatively the Customer can request a hard copy from the Supplier.)
Supplier: Delta Surgical Limited (registered in England and Wales with company number 04154893).
Supplier’s Website: www.nemos.uk.com
Trial Period: six months from the date the Initial Payment is received in cleared funds by the Supplier.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to writing or written includes faxes (but not emails).
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Product(s) in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Product described in them. They shall not form part of the Contract or have any contractual force.
2.6 If the Order is not made through the Supplier’s Website, the Customer must send written confirmation to the Supplier that they have read and understood these Terms and Conditions with their Order.
3. Product and use
3.1 The Product will only be supplied direct to an End User following completion and return of the Medical Recommendation Form.
3.2 The Questionnaire is available to assist in the completion of the Medical Recommendation Form.
3.3 The End User must read and follow the NEMOS® Instructions. The Supplier takes no responsibility as to the effectiveness of the Product and Customers should note that the Supplier’s liability is limited in accordance with clause 9 of these Conditions.
3.4 Customers who are not the End User must ensure:
(a) a Medical Recommendation Form has been completed by the End User in each case for return to the Supplier; and
(b) the End User is aware of and understands the NEMOS® Instructions.
3.5 The Supplier will provide a 24 hour support help line to all End Users.
4.1 The Supplier will deliver the Product to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Product is ready.
4.2 Delivery of the Product will be completed on its arrival at the Delivery Location.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier will not be liable for any delay in delivery of the Product which is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Product.
4.4 The Supplier will have no liability for any failure to deliver the Product to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions.
5.1 The Supplier confirms that in accordance with the Manufacturer’s warranty, and for a period of 24 months from the date of delivery (Warranty Period), the Product shall:
(a) conform with its description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for the purpose held out by the Manufacturer.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that the Product does not comply with the Manufacturer’s warranty set out in clause 5.1; and
(b) the Supplier is given a reasonable opportunity of examining the Product; and
(c) the Customer (if asked to do so by the Supplier) returns the Product to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Product.
5.3 The Supplier will not be liable for the Product’s failure to comply with the Manufacturer’s warranty set out in clause 5.1 in any of the following events:
(a) the defect arises because the Customer failed to follow the NEMOS® Instructions as to the storage, use and maintenance of the Product;
(b) the Customer alters or repairs the Product without the written consent of the Supplier;
(c) the defect arises as a result of fair wear and tear, wilful damage or negligence.
5.4 Except as provided in this clause 5, the Supplier will have no liability to the Customer in respect of the Product’s failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions will apply to any repaired or replacement Product supplied by the Supplier.
6. Title and risk
6.1 The risk in the Product shall pass to the Customer on completion of delivery.
6.2 Title to the Product will not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Product in accordance with clause 7.6(a) or at completion of the relevant Payment Plan.
6.3 Until title to the Product has passed to the Customer, the Customer will:
(a) maintain the Product, its components and original packaging in satisfactory condition and keep the Product insured against all risks for its full price from the date of delivery; and
(b) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.4.
6.4 If before title to the Product passes to the Customer the Customer becomes subject to any of the events listed in clause 8.4, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Product in its possession and, in the case of multiple orders, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7. Price and payment
7.1 The price of the Product shall be the price set out in the Order, or, if no price is quoted, the prices referred to in this Contract.
7.2 The Supplier may, by giving notice to the Customer at any time up to 30 Business Days before delivery, increase the price of the Product to reflect any increase in the cost of the Product which is due to any factor beyond the Supplier’s control (including increases in taxes and duties, and increases in labour, materials and other manufacturing costs).
7.3 The Initial Payment must be made by an accepted Payment Method. For the avoidance of doubt the Product will not be despatched until the Supplier is in cleared funds.
7.4 The Customer consents to the Supplier keeping a record of the Customer’s debit or credit card details used to make the Initial Payment in order that future payments (if any) may be deducted.
7.5 At the end of the Trial Period the Customer or End User, as the case may be, will have the following options:
(a) subject to payment in accordance with clause 7.6 (a) or (b), retain the Product; or
(b) return the Product within 5 Business Days of the Trial Period ending and, subject to clauses 7.8 and 7.10, have no further liability to the Supplier.
7.6 In the event an End User wishes to continue the treatment the balance of the purchase price must be paid as follows:
(a) in a single payment of £2,087.00 by an accepted Payment Method; or
(b) through a Payment Plan.
7.7 The price of the Product is inclusive of amounts in respect of value added tax.
7.8 In the event a Customer chooses to exercise the option under clause 7.5(b), the following provisions apply:
(a) all returned Products plus its components and original packaging must be fully functional and in the same condition they were when originally supplied to the Customer by the Supplier;
(b) the Customer is liable for any damage to the Product, its components and original packaging. Any Product, component or original packaging which is defaced, damaged or destroyed will result in payment of the balance of the full price of the Product, stated at 7.6(a), being deducted from the Customer’s debit or credit card;
(c) The Customer must ensure that return of the Product is by a secure delivery method, that the Product, its components and original packaging are appropriately packaged for the chosen delivery method and that the Product is insured during delivery to the Supplier;
(d) the Supplier will inspect the Product, its components and original packaging on receipt of the same and subject to the provisions of this clause 7, will, within 10 Business Days, confirm termination of the contract in writing to the Customer; and
(e) if the Product is not returned within 5 Business Days of the Trial Period ending, the Supplier will be entitled to deduct the amount stated at clause 7.6(a) from the Customer’s debit or credit card with no further reference to the Customer.
7.9 Replacement parts for the Product will be charged at the rate current from time to time.
7.10 The Customer is liable for repairs to Product, its components and original packaging which are damaged or broken while in the Customer’s possession. For the avoidance of doubt this provision applies during the Trial Period.
7.11 In respect of payments through a Payment Plan, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer will pay interest on the overdue amount at the rate of 4% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.12 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
7.13 In respect of payments through a Payment Plan, in the event a Customer fails to pay the due amount for two consecutive months the Supplier will be entitled to deduct the full balance still due under the Contract from the Customer’s debit or credit card provided the Supplier has given written notice of its intention to do so.
8.1 The Consumer Contract Regulations 2013 apply, as amended from time to time.
8.2 If the Customer is a Consumer, the Consumer has a right to cancel the Contract within 14 calendar days. Please see our returns policy for more information which can be found at www.nemos.uk.com or can be provided in hard copy by the Supplier at your request. .
8.3 If the Customer becomes subject to any of the events listed in clause 8.4, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
8.4 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause a to clause f (inclusive);
(j) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(k) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.5 Without limiting its other rights or remedies, the Supplier may terminate the Contract if the Customer becomes subject to any of the events listed in clause a to clause k, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment, following notification that the payment is overdue.
8.6 On termination of the Contract for any reason specified under clause 8.2 the Customer shall immediately:
(a) return the Product; and
(b) in the event the termination occurs after the end of the Trial Period, subject to clause 8.5, pay to the Supplier one further month’s instalment.
8.7 Subject to clauses 7.8(c), 7.8(d) and 7.10, all returned Products plus its components and original packaging (returned due to an event specified under clause 8.2 occuring) must be fully functional on receipt by the Supplier. Any Product, component or original packaging which is defaced, damaged or destroyed, or in the event the Product is not returned after 5 Business Days of notification to return the Product, will result in payment for the balance of the full price of the Product being deducted from the Customer’s debit or credit card.
8.8 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.9 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8.10 The Supplier’s returns policy can also be found on their website at www.nemos.uk.com.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with the Contract;
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 10% of the price of the Product.
10. Force majeure
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond the Supplier’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause a; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If 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. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4 Waiver. A 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, nor shall it prevent or restrict the further exercise 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.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
11.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
11.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).