Terms of Use
- Definitions and Interpretation
1.1 Definitions:
Buyer: the person or firm who purchases the Goods from the Seller.
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.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Minimum Quantity: 100 units (UK sales) and 400 units (rest of the world).
Order: the Buyer's order for the Goods.
Seller: DX Products Limited (registered in England and Wales with company number 07254422)
Territory: the countries or areas where the Buyer carries on business or sells the Goods save for the United States of America and the People’s Republic of China
1.2 Interpretation:
(a) 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.
(b) 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.
(c) a reference to writing or written includes emails.
- Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer 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 Buyer to purchase the Goods in accordance with these Conditions. The Buyer 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 Seller issues a written acceptance of the Order, at which point the Contract shall come into existence. The Seller may accept or decline Orders at its absolute discretion.
2.4 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.5 Any samples, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues, or brochures, or that appear from time to time on any website of the Seller are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 Any order placed by the Buyer with the Seller shall be for the Minimum Quantity of the Goods. All orders shall be in multiples of five units.
2.7 The Buyer shall be entitled to cancel any Order before the Goods are despatched without financial penalty.
- Goods
3.1 The Goods are described in the Seller's catalogues, brochures, or website.
3.2 The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.3 The Buyer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required, those licences and consents shall be made available to the other party prior to the relevant shipment.
3.4 If the Buyer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Seller in writing enclosing a copy of the Recall Notice.
3.5 Unless required by law, the Buyer may not undertake any recall or withdrawal without the written permission of the Seller and only then in strict compliance with the Seller’s instructions as to the process of implementing the withdrawal.
- Delivery
4.1 The Seller shall ensure that each delivery of the Goods is accompanied by a packing slip that shows the name and address of the Buyer and details of the Goods supplied.
4.2 The Seller or its agent shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Seller notifies the Buyer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- Quality
5.1 The Seller warrants that on delivery, and for a period of two years from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description; and
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Seller.
5.2 Subject to clause 5.3, if:
(a) the Buyer gives notice in writing to the Seller during the warranty period that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Seller is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Seller's cost,
the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) if any further use is made of such Goods after giving notice in accordance with clause 5.2;
(b) the Buyer alters or repairs such Goods without the written consent of the Seller;
(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(d) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods' 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 shall apply to any repaired or replacement Goods supplied by the Seller.
- Title and risk
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery. Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods and the Goods have been delivered to or collected by the Buyer.
- Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Seller's published price list in force as at the date of delivery.
7.2 The Seller may, by giving notice to the Buyer at any time up to seven Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
7.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate in the event that (if appropriate) a valid EU VAT number is not provided; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
7.4 If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank 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 Buyer shall pay the interest together with the overdue amount.
7.5 The Buyer 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). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
- Advertising and Promotion
8.1 The Buyer shall:
(a) be entitled to Use, for its own purposes, that promotional material which is made available by the Seller from time to time, and which currently, as at the date of this agreement, may be found at https://sites.google.com/view/bathmate-media-kit, subject, to the prior written consent of the Seller (the “Seller Promotional Material”);
(b) not sub-licence, grant any permissions or rights, distribute, sell, or otherwise authorise any person not party to this agreement to Use, any Seller Promotional Material, unless agreed otherwise in writing with the Seller;
(c) fully comply with all directions and instructions given to it by the Seller for the promotion or advertisement of the Goods, including compliance with the FDA’s Special Controls Guidance for External Penile Rigidity Devices and thereby not market the Goods for the following uses:
Mechanical penile extenders;
Foreskin remodeling or restoration;
Penile enhancement, such as penis enlargement
Treatment of diseases or conditions of the penis with respect to curvature and other penis deformities, e.g., Peyronie’s Disease.
Prevention or reversal of erectile dysfunction/impotence; or
Retaining a condom on the penis;
(d) not make any written statement as to the quality or manufacture of the Goods without the prior written approval of the Seller;
(e) subject to the restrictions set out in this agreement and specifically, clause 8(b), include in any contract between the Buyer and a person or entity that sells the products to consumers a contractual provision that indemnifies the Seller for any potential loss or liability arising from that person or entity’s advertising practices or advertising claims;
(f) indemnify the Seller for any potential loss or liability arising from Buyer’s advertising practices or advertising claims or otherwise arising from any breach of this Contract; and
(g) promptly give notice to the Seller in writing by email to info@bathmatedirect.com if it becomes aware of: (i) any infringement or suspected infringement of the Intellectual Property Rights relating to the Goods within the Territory; (ii) any claim or threatened claim that any Goods or the manufacture, use, sale or other disposal of the same within the Territory, infringes the rights of any third party; or (iii) any claim or threatened claim that the promotion or advertisement of the Goods violates any applicable laws and regulations.
8.2 The Buyer shall not be permitted to use any Intellectual Property as part of any listing on internet auction sites without the prior written consent of the Seller. The Seller reserves the right to take all steps to remove any such listing which infringes or may infringe the Intellectual Property Rights without notice.
8.3 The Buyer acknowledges and agrees that the Intellectual Property Rights relating to the Goods and the Seller Promotional Material shall remain in
the Seller, and that the Buyer has and will acquire no right in them by virtue of the discharge of its obligations under the Contract except for the right to Use the Seller Promotional Material as referred to at clause 8.1(a) above.
8.4 For the purposes of this clause 8, ‘Use’ means to advertise, market and to sell the Goods.
- Compliance with laws and policies
9.1 The Buyer shall at its own expense comply with all laws and regulations relating to its activities under the Contract, as they may change from time to time, including, but not limited to, the U.S. Food and Drug Administration, Class II Special Controls Guidance Document: External Penile Rigidity Devices (Dec. 28, 2004), and with any conditions binding on the Buyer by any applicable licences, registrations, permits and approvals.
9.2 Buyer shall ensure that any person or entity that purchases the products for the purpose of marketing the product to consumers complies with all applicable laws and regulations, including, but not limited to, the U.S. Food and Drug Administration, Class II Special Controls Guidance Document: External Penile Rigidity Devices (Dec. 28, 2004), and the Buyer’s obligations under this Contract.
9.3 The Buyer shall indemnify the Seller in full against all liabilities, costs, expenses, damages and losses that are suffered or are incurred by the Seller arising out of or in connection with a breach of the laws, regulations and obligations referred to at clause 10.1 and 10.2 below.
9.4 The Buyer shall give the Seller as much advance notice as possible of any prospective or actual changes in laws and regulations applicable to the marketing of the Goods in the Territory.
- Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude the Seller'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; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
10.2 Subject to clause 10.1:
(a) the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
(b) the Seller shall under no circumstance whatsoever be liable to Buyer for Buyer’s advertising practices or advertising claims;
(c) the Seller shall under no circumstance be liable the advertising practices or advertising claims made by persons or entities who purchase the products from Buyer for the purpose of selling such products to consumers; and
(d) the Seller's total liability to the Buyer 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 the price of the Goods.
- Force majeure
11.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this Contract by giving seven days written notice to the affected party.
- General
12.1 Assignment and other dealings.
(a) The Seller 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 Buyer 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 Seller.
12.2 Confidentiality.
(a) Each party undertakes that it shall not at any time and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, buyers, clients or sellers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 12(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12.3. Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver. 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.
12.6 Severance. 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.
12.7 Notices.
(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, or commercial courier.
(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 0; 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.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.8 No partnership or agency
(a) Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
(b) Each party confirms that they are acting on its own behalf and not for the benefit of any other person.
12.9 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
- General obligations of distributors
Applies to customers based within the EEA only; conforming to EU Medical Device regulation (For reference: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017R0745)
13.1 Article 14
When making a device available on the market, distributors shall, in the context of their activities, act with due care in relation to the requirements applicable.
Before making a device available on the market, distributors shall verify that all of the following requirements are met:
(a) the device has been CE marked and that the EU declaration of conformity of the device has been drawn up;
(b) the device is accompanied by the information to be supplied by the manufacturer in accordance with Article 10(11);
(c) for imported devices, the importer has complied with the requirements set out in Article 13(3);
(d) that, where applicable, a UDI has been assigned by the manufacturer.
In order to meet the requirements referred to in points (a), (b) and (d) of the first subparagraph the distributor may apply a sampling method that is representative of the devices supplied by that distributor.
Where a distributor considers or has reason to believe that a device is not in conformity with the requirements of this Regulation, it shall not make the device available on the market until it has been brought into conformity, and shall inform the manufacturer and, where applicable, the manufacturer's authorised representative, and the importer. Where the distributor considers or has reason to believe that the device presents a serious risk or is a falsified device, it shall also inform the competent authority of the Member State in which it is established.
Distributors shall ensure that, while the device is under their responsibility, storage or transport conditions comply with the conditions set by the manufacturer.
Distributors that consider or have reason to believe that a device which they have made available on the market is not in conformity with this Regulation shall immediately inform the manufacturer and, where applicable, the manufacturer's authorised representative and the importer.
Distributors shall co-operate with the manufacturer and, where applicable, the manufacturer's authorised representative, and the importer, and with competent authorities to ensure that the necessary corrective action to bring that device into conformity, to withdraw or to recall it, as appropriate, is taken. Where the distributor considers or has reason to believe that the device presents a serious risk, it shall also immediately inform the competent authorities of the Member States in which it made the device available, giving details, in particular, of the non-compliance and of any corrective action taken.
Distributors that have received complaints or reports from healthcare professionals, patients or users about suspected incidents related to a device they have made available, shall immediately forward this information to the manufacturer and, where applicable, the manufacturer's authorised representative, and the importer. They shall keep a register of complaints, of non-conforming devices and of recalls and withdrawals, and keep the manufacturer and, where available, the authorised representative and the importer informed of such monitoring and provide them with any information upon their request.
Distributors shall, upon request by a competent authority, provide it with all the information and documentation that is at their disposal and is necessary to demonstrate the conformity of a device.
Distributors shall be considered to have fulfilled the obligation referred to in the first subparagraph when the manufacturer or, where applicable, the authorised representative for the device in question provides the required information. Distributors shall cooperate with competent authorities, at their request, on any action taken to eliminate the risks posed by devices which they have made available on the market. Distributors, upon request by a competent authority, shall provide free samples of the device or, where that is impracticable, grant access to the device.