Terms & conditions

Axonex Limited Terms and Conditions of Sale

 

The Buyer’s attention is particularly drawn to the provisions of Clause 14 (Limitation of Liability)

1. Definitions & Interpretation.

a. Where used in these Terms and Conditions of sale:

i. “Authorised Representative” means any person who holds the job title and office of Managing Director, Finance Director or other company director.

ii. “Axonex Ltd” means Axonex Limited, registered in England and Wales under company number 5549938, with a registered place of business at Hadley House, Bayshill Road, Cheltenham, Gloucestershire, GL50 3AW, UK, or, as appropriate, any branch offices or subsidiaries within the meaning of section 1159 Companies Act 2006.

iii. “Buyer” means any individual person, entity, company, firm or organisation that purchases Products from Axonex Ltd for use in its business or the business of a third party end-user and not as a Consumer.

iv. “Consumer” means any natural person who is acting for purposes not related to his or her trade, business or profession.

v. “Conditions” means these Terms and Conditions of Sale or any such successor standard terms and conditions that the buyer is notified are in full force and effect as of the date of a Contract.

vi. “Contract” means any agreement for the purchase and sale of Products from Axonex Ltd to Buyer which result from a Purchase Order submitted to and accepted by Axonex Ltd in accordance with the Conditions.

vii. “Contract Date” means the date upon which a Purchase Order is accepted by Axonex Ltd.

viii. “Deliverables” means the materials supplied by Axonex Ltd in relation to the Services or as otherwise specified in the Purchase Order.

ix. “E-System” means the Product ordering website operated by Axonex Ltd located at the following URLs: www.axonex.com, www.axonex.co.uk, www.axonex.net.

x. “Force Majeure” means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labour, trade disputes, breakdowns, accidents of any kind, failure of telecommunications lines or other utilities or any other causes which are beyond the reasonable control of Axonex Ltd (including delay by its Suppliers).

xi. “Goods” means any Supplier’s goods and/or software and/or Special Order Goods, or any installment or parts thereof, which are supplied by Axonex Ltd to Buyer pursuant to a Contract, including any Supplier documentation related thereto.

xii. “Products” means any combination of Goods and/or Services which are supplied by Axonex Ltd to Buyer pursuant to a Contract.

xiii. “Purchase Order” means Buyer’s oral, written or electronic order for Products and shall include any order that Buyer places online through the E-System or transmits via email or facsimile.

xiv. “Services” means any Supplier’s services, including the Deliverables, which are supplied by Axonex Ltd to Buyer pursuant to a Contract.

xv. “Special Order Goods” shall mean any Goods that are custom ordered or configured to Buyer’s specifications, or otherwise designated as special order Goods by Axonex Ltd.

xvi. “Supplier” means the supplier, licensor, publisher, manufacturer or other third party provider of Products.

b. As used in these Conditions, (i) any reference to a statute shall be construed as a reference to that provision as amended, waived, re-enacted or otherwise modified from time to time, (ii) the term “including” will always be deemed to mean “including, without limitation”, (iii) a definition is equally applicable to the singular and plural forms of the feminine, masculine and neuter forms of the term defined, and (iv) any headings in the Conditions are for convenience only and shall not affect the interpretation of any terms.

2. General Terms of Order & Sale.

a. Every Contract between Axonex Ltd and Buyer shall be subject to these Conditions. No additional or alternative terms or conditions or any alteration to these Conditions proposed by the Buyer contained or referred to in a Purchase Order or other form submitted to Axonex Ltd or which are implied by trade, custom, practice or course of dealing shall be deemed to apply unless they are expressly accepted in writing by an Authorised Representative of Axonex Ltd with respect to that Purchase Order. Similarly, any Purchase Orders submitted and automatically accepted through the E-System which contain Buyer’s terms and conditions shall be deemed a rejection of such Buyer’s terms and conditions and an offer by Buyer to purchase Products subject to these Conditions.

b. Axonex Ltd will use reasonable efforts to notify Buyer of any material changes to the Conditions before they become applicable, but it is the sole and exclusive responsibility of the Buyer to ensure that it is familiar with the most current set of Conditions which apply to any Contract between Axonex Ltd and Buyer.

c. Buyer shall be deemed to have accepted these Conditions by the earlier of: (i) signing a Axonex Ltd credit application, (ii) submitting a Purchase Order to Axonex Ltd, or (iii) accepting Products from Axonex Ltd.

d. Notwithstanding the foregoing, Buyer agrees that Axonex Ltd’s provision of a price quotation, price list or any other information shall not be considered an offer by Axonex Ltd to sell Products at those prices or subject to any other terms and conditions. Only a Purchase Order submitted by Buyer shall constitute an offer to contract subject to these Conditions, however, a Purchase Order shall not be deemed a Contract unless and until the earlier date upon which: (i) written confirmation is provided by Axonex Ltd, (ii) a Purchase Order placed through the E-System is confirmed by Axonex Ltd via email, or (iii) Axonex Ltd proceeds with the fulfillment of the Purchase Order.

e. Notwithstanding the foregoing, Axonex Ltd and its Suppliers reserve the right to make any changes in the specifications of the Products, without notice to Buyer, which are required in order to conform to any statutory or other legal requirements or which do not materially affect the performance of the relevant Products.

f. Axonex Ltd shall provide the Services to Buyer in accordance with any agreed specification and using reasonable care and skill.  Axonex Ltd shall endeavour to meet any performance dates for the Services but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.  

g. Where Services relate to the provision of training, Axonex Ltd reserves the right to provide such Services at a venue or venues other than Axonex Ltd’s premises and to provide personnel of its own selection. Axonex Ltd further reserves the right to refuse or curtail any training Services if a delegate or substitute delegate attending on behalf of Buyer fails to satisfy any training requirements for which Buyer was notified prior to the commencement of such training.  Buyer shall co-operate with Axonex Ltd in all matters relating to the Services and provide such information as Axonex Ltd may reasonably require to supply the same.  Axonex Limited shall not be liable for any delay or failure to provide the Services due to any act or omission by Buyer.

h. Any Products which are subject to guidelines, restrictions or provisions imposed by a Supplier are sold, supplied and delivered to Buyer subject to any such guidelines, restrictions or provisions.

3. Special Order Goods.

a. Notwithstanding anything to the contrary contained herein, if Buyer has elected to purchase Special Order Goods, Buyer understands and agrees that any Contracts for Special Order Goods may not be cancelled, withdrawn, rescheduled or otherwise modified by Buyer, and Buyer further understands and agrees that such Special Order Goods, except as set forth under Clause 12, may not be returned, refused or rejected for any reason whatsoever. Further, Buyer shall not be entitled to a credit or refund for such Special Order Goods for any reason whatsoever. Buyer shall indemnify and hold Axonex Ltd harmless for any and all delays, claims, losses, liabilities, costs or expenses related to Special Order Goods.

b. Buyer shall be solely responsible for the accuracy of any Purchase Order submitted for Special Order Goods, including the specification, configuration or other details of such Special Order Goods and their functionality, compatibility and interoperability with other products, as well as their fitness for particular use as required by Buyer’s customer.

c. Axonex Ltd warrants, for a period of fourteen (14) days from delivery, that any Special Order Goods will be delivered subject to the configuration set forth on the Purchase Order. Axonex Ltd’s sole and exclusive liability, and Buyer’s sole remedy, for a breach of the foregoing warranty shall be to repair or replace, at its sole and absolute discretion, the Special Order Goods, provided Axonex Ltd shall have no liability for any inaccuracies on a Purchase Order.

4. Cancelling & Rescheduling Purchase Orders.

No Purchase Order which has been accepted by Axonex Ltd may be cancelled or rescheduled by Buyer except with written agreement by Axonex Ltd and on terms that Buyer shall indemnify Axonex Ltd, in full, against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages and expenses incurred by Axonex Ltd as a result of a cancellation, subject to a minimum of 5% of the total value of a cancelled Purchase Order (which amount Buyer agrees represents a genuine estimate of Axonex Ltd’s loss), together with Axonex Ltd’s costs of recovering any Goods delivered or in transit.

5. Prices.

a. The price of Goods in Axonex Ltd’s stock on the Contract Date shall be: (i) the quoted price (which shall be given formally in writing and be valid for seven (7) days following the date of quotation), or (ii) the list price in Axonex Ltd’s then current published price list on the date of Contract, where no price has been quoted or a quoted price has expired.

b. The price of Goods which are not in stock on the Contract Date (“Backordered”) shall be: (i) the quoted price (which shall be given formally in writing and be valid for seven (7) days following the date of quotation), or (ii) the list price in Axonex Ltd’s then current published price list on the date the Backordered Goods are scheduled for delivery to Buyer.

c. The charges for Services shall be on a time and materials basis and the charges shall be calculated in accordance with Axonex Ltd’s current daily fee rates on the date of the Contract.

d. Notwithstanding the foregoing, Axonex Ltd reserves the right, by giving notice to Buyer any time before delivery, to increase the price of Products after the Contract Date to reflect any increase in the cost of such Products that is due to any factor beyond the control of Axonex Ltd, including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Products which are requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give Axonex Ltd adequate information or instruction, but Axonex Ltd shall only increase its price by the amount necessary to reflect such an increase. Further, in the event Axonex Ltd or its agent makes a material error or omission when quoting a price, Axonex Ltd shall be entitled, for a period of

thirty (30) days following the Contract Date, to increase the price of the related Products sold to Buyer by either (i) invoicing Buyer for the Buyer’s proper list price on the date of the Contract Date, or (ii) allowing Buyer to return such Products to Axonex Ltd and crediting Buyer for the fees paid by Buyer for such Products.

e. Except as otherwise stated on a price quotation or in Axonex Ltd’s then current price list, and unless otherwise agreed in writing between the Buyer and Axonex Ltd, all prices are quoted on an Ex Works basis (as per Incoterms 2000) and the Buyer shall be liable to pay Axonex Ltd’s charges for transport, packaging and insurance.

f. All prices are exclusive the cost of packaging and delivery, configuration, fulfillment and other services provided.

g. Axonex will quote the Buyer prior to any expenses or costs incurred.

h. All prices and charges are exclusive of packaging and delivery costs, and applicable value added tax (VAT), sales, use, consumption, gross sales tax (GST) and other taxes (other than taxes based upon Axonex Ltd’s net income) for which the Buyer shall be additionally liable for paying to Axonex Ltd. Buyer shall make all payments to Axonex Ltd without reduction for any withholding taxes, which shall be Buyer’s sole responsibility. All such taxes shall be paid by Buyer to Axonex Ltd unless Buyer provides Axonex Ltd with a valid certificate of exemption acceptable to the appropriate taxing authority.

i. Prices exclude any copyright levies, waste and environment fees and similar charge that Axonex Ltd by law or statute may charge or collect upon in accordance with such laws or statutes.

j. In the event a Supplier should grant a special pricing consideration or discount to Axonex Ltd and such Supplier pricing is made available to Buyer (“Pass-Through Discounts”), the Buyer agrees to adhere to the terms and conditions of such Pass-Through Discounts (“Pass-Through Discount Terms”), and agrees to indemnify Axonex Ltd for any Supplier claims against Axonex Ltd for Buyer’s failure to comply with such Pass-Through Discount Terms. Buyer agrees that payment and receipt of benefits under Pass-Through Discount Terms are contingent upon Buyer’s compliance with such terms, and further agrees to pay any costs or fees, if any, charged to Axonex Ltd by the Supplier for participation in Pass-Through Discounts.

6. Payment.

a. If Buyer has not been granted credit facilities by Axonex Ltd then Buyer’s payment shall be due on the date of the invoice and in advance of delivery. If Buyer has been granted credit facilities by Axonex Ltd then Buyer shall pay the purchase price, without any deduction or set-off, within thirty (30) days from the date of the invoice which shall be issued to Buyer on the date that Goods are shipped and/or the Services are provided. If payment is made by credit or debit card then Buyer agrees to pay all fees and service charges incurred by Axonex Ltd in handling such transactions, including fees charged by the credit or debit card company.

b. All express deliveries are subject to additional shipping charges regardless of invoice value.

c. Timely payment is of the essence of these Conditions. Axonex Ltd shall be entitled to recover any invoiced amounts notwithstanding that delivery of the Goods and/or supply of the Services may not have taken place and title in the Goods has not passed to Buyer. If (i) Buyer fails to make any payment under any Contract when due; (ii) any distress or execution is levied upon Buyer’s property or assets; (iii) Buyer makes or offers any arrangement or composition with its creditors; (iv) Buyer is a body corporate and any resolution or petition to wind up Buyer’s business (other than for the purpose of amalgamation or reconstruction) is passed or presented; (v) a receiver, administrator, manager or analogous person is appointed in respect of the undertaking, property or assets of Buyer or any part thereof;  (vi) Buyer is an individual, and any grounds arise for the presentation of a petition for a bankruptcy order made under Part IX Chapter 1 Insolvency Act 1986 or any statutory re-enactment or modification thereof or on the presentation of such a petition; (vii) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Clause 6(c); or (viii) Buyer exceeds it credit limit then, without prejudice to any other right or remedy available to Axonex Ltd, the full price of all Products delivered to Buyer under any Contract, but not paid for, shall become immediately due (notwithstanding any previously agreed credit terms) and Axonex Ltd shall be entitled to take any or all of the following courses of action:

i. by notice, suspend or terminate any Contract or any part thereof, without liability, stop any Goods in transit and/or the supply of any Services and, at its discretion, subject to Clause 8, enter Buyer’s premises to recover any Goods for which payment has not been made in full;

ii. charge Buyer interest, both pre- and post judgment, on any unpaid amount past due, at the rate of 2.5% per month until full payment is made. For clarity, a part of a month shall be treated as a full month for the purpose of calculating interest;

iii. appropriate any payment made by Buyer to such Goods and/or Services (including Goods and/or Services supplied under any other contract between Buyer and Axonex Ltd or any Axonex Ltd branch or subsidiary) as Axonex Ltd may deem fit (notwithstanding any purported appropriation by Buyer); and/or

iv. alter Buyer’s payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and demanding adequate assurance of due performance by Buyer through the provision of a bank guarantee.

d. Buyer shall provide Axonex Ltd with copies of its annual and/or quarterly financial statements upon Axonex Ltd’s request. Buyer shall notify Axonex Ltd in writing prior to entering into any contract whereby Buyer would sell, assign, factor or otherwise transfer any book debt owed to Buyer, or before entering into any form of invoice discounting arrangement with a third party.

e. Any credit note, balance or other liability issued by Axonex Ltd to Buyer (including values of Goods trade-ins or promotions) shall expire, without notice, within twelve (12) months of the date of issuance by Axonex Ltd. Buyer shall be deemed to have forfeited any right to such credit amounts and shall not be entitled to a replacement or repayment of any amounts related thereto.

7. Delivery of Goods.

a. Any dates quoted for delivery of Goods are approximate only and Axonex Ltd shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of any Contract unless previously agreed in writing by Axonex Ltd. Any Goods may be delivered by Axonex Ltd in advance of the quoted delivery date upon giving reasonable notice to Buyer.

b. Unless otherwise agreed in writing, delivery of the Goods shall be made at Axonex Ltd’s premises upon notification to Buyer that such Goods are ready for collection. Buyer shall be entitled to collect the Goods any time thereafter on reasonable notice during Axonex Ltd’s normal business hours. Axonex Ltd shall have the right to assume that any person who both reasonably appears and claims to have the authority to accept and sign for delivery of the Goods on behalf of Buyer does, in fact, have requisite authority from Buyer.

c. Claims for non-delivery of Goods must be made in writing to Axonex Ltd within five (5) working days from the date of invoice. In the event Axonex Ltd should agree to deliver Goods directly to Buyer’s customer any such delivery shall be deemed to be made to Buyer and any refusal by Buyer's customer to accept such delivery shall be deemed to be a refusal by Buyer.

d. Buyer agrees to accept partial delivery of Goods ordered unless otherwise mutually agreed by the parties in writing. Where the Products are delivered in installments, each delivery shall constitute a separate Contract. Failure by Axonex Ltd to deliver any one or more of the installments in accordance with these Conditions or any claim by Buyer in respect of any one or more installments shall not entitle Buyer to treat a Contract as repudiated or to cancel any other installment.

e. If Buyer fails to take delivery of the Goods or fails to give Axonex Ltd adequate delivery instructions in its Purchase Order then, without prejudice to any other right or remedy available, Axonex Ltd may: (i) store the Goods until actual delivery and charge Buyer for the reasonable costs thereof, including insurance costs; or (ii) terminate the Contract forthwith and sell the Goods.

f. Buyer shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of Goods ordered pursuant to a Contract.

g. If there is a shortage of Goods available to Axonex Ltd then Axonex Ltd may allocate any available Goods between its buyers on such a basis as it deems appropriate. In case of the foregoing, then Buyer agrees to accept any Goods delivered to it and shall pay the appropriate pro-rated portion of the invoiced price for such Goods.

8. Title & Risk in the Goods.

a. Risk of loss or damage to the Goods shall pass to Buyer: (i) upon delivery, or (ii) if Buyer unjustifiably fails to take delivery of the Goods, at such time as delivery is tendered by Axonex Ltd. Buyer shall insure the Goods for the invoice value from the date delivery is made or tendered. Notwithstanding delivery and the passing of risk in the Goods, Buyer agrees that title to the Goods shall not pass to Buyer until Axonex Ltd has cleared funds received as payment for the price of the Goods, and all other sums which are then currently outstanding to Axonex Ltd on any account.

b. Until such time as title in the Goods passes to Buyer, Buyer shall (i) hold the Goods as Axonex Ltd’s fiduciary agent and bailee, (ii) store all of the Goods in such a way as to be clearly separate and identifiable from Buyer’s other products, (iii) keep the Goods in their original packaging, properly stored, protected, insured and identified as Axonex Ltd’s property. Notwithstanding the foregoing, Buyer may resell the Goods in the ordinary course of business, provided, (i) that any such resale shall be subject to a retention of title clause, including a right of entry to repossess Goods covered by this Clause, and (ii) Buyer does not offer the Goods as collateral or otherwise pledge or grant a charge in respect of the Goods (a “Third Party Security Interest”) until title has passed to Buyer in accordance with these Conditions. If Buyer does permit, allow or otherwise create a Third Party Security Interest in the Goods before title has passed to Buyer, then all monies owed to Axonex Ltd shall immediately become due and payable. Upon Axonex Ltd’s request, Buyer shall provide Axonex Ltd with all details and information necessary to collect the Goods in the event of non-payment.

c. If the Buyer sells any Goods in such a manner as to pass to valid title to the Goods to a third party, the Buyer shall hold the proceeds of such sale in trust for Axonex Ltd, provided the foregoing shall not constitute Buyer as an agent of Axonex Ltd for the purposes of any such resale.

d. Until such time as the title in the Goods passes to Buyer, Axonex Ltd shall be entitled to require Buyer to return the Goods to Axonex Ltd. If Buyer should fail to immediately comply with Axonex Ltd’s request, Axonex Ltd shall have the right to enter on or in any premises or vehicles of Buyer where the Goods are loaded or stored for the purpose of repossessing said Goods.

e. Buyer shall not be permitted to sell any Goods in its inventory after the appointment of a receiver to its property or after it has been placed in liquidation or administration or, not being a company, has committed an act of bankruptcy. Further, Buyer’s right to possess the Goods shall immediately cease when and if Buyer makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself or becomes subject to any proceeding under any applicable bankruptcy laws, is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or otherwise ceases to trade.

9. Damage to Goods & Loss in Transit.

a. Axonex Ltd shall not be liable in respect of error in delivery, loss, damage or destruction to any Goods during transportation of the Goods to Buyer unless notice thereof is advised to Axonex Ltd by telephone immediately on receipt of the Goods and confirmed in writing within five (5) working days. Buyer shall concurrently notify the carrier in writing of any such error, loss or damage and shall in all cases, where possible, enter a note of the same upon the carrier’s bill of lading or other delivery receipt. If by reason of Buyer’s failure to give any such notice as provided above Axonex Ltd is unable to make recovery from the carriers in respect of the error, loss or damage complained of, then Buyer shall be liable to pay for Goods as though no such error, loss or damage occurred. No liability for Goods shortages will be accepted by Axonex Ltd unless such shortage is noted on the bill of lading or other delivery receipt.

b. Subject to the foregoing, any Goods delivered in error or lost, damaged or destroyed during transportation will be replaced or rectified by Axonex Ltd, as originally ordered or, if rectification or replacement is not practicable, Axonex Ltd will issue a credit to Buyer equal to any payments received by Axonex Ltd for such Goods. Axonex Ltd shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any error, loss, damage or defect except as set forth herein.

c. Any error, loss, damage or destruction of Product discovered by Buyer in delivery shall not entitle Buyer to rescind the remainder of a Contract.

10. Publications & Specifications.

Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of Axonex Ltd or a Supplier are intended to be illustrative and approximate only and shall not form part of a Contract or constitute a representation, warranty or condition regarding any Products unless specifically agreed by written agreement between the Buyer and Axonex Ltd. No employee or agent of Axonex Ltd has any authority to make any representation regarding the Products. Buyer acknowledges that it has not been induced to accept these Conditions by any representations or statement, oral or written, not expressly contained herein.

11. Warranty.

a. Buyer understands that Axonex Ltd is not the Supplier of the Goods. Accordingly, all Goods are sold subject to the express warranty terms, if any, specified by the original Supplier of the Goods. Buyer will ensure that any express warranty terms provided with the Goods, including any benefits related thereto, are passed on to its customers from the original Supplier of the Goods. Any software supplied to Buyer pursuant to a Contract is supplied subject to the provisions of the Supplier’s licensing terms.

b. Buyer may not make or pass on, and shall take all measures necessary to ensure that neither it nor any of its agents or employees shall make or pass on, any warranty or representation relating to any Goods on behalf of Axonex Ltd or Supplier to its customers.

c. Any warranties, conditions or other terms implied by common law or statute or otherwise in connection with these Conditions (except to title, in the case of Goods) are hereby expressly excluded to the fullest extent permitted by law, save for fraudulent misrepresentation.

12. Warranty Assistance.

a. Buyer shall immediately notify Axonex Ltd if any Goods supplied to Buyer prove to be defective in quality or condition within the Supplier’s warranty period. Upon receipt of notification of such claim from Buyer, Axonex Ltd shall notify Buyer whether, as a matter of Supplier policy, the claim must be handled directly with the Supplier or indirectly through Axonex Ltd. In the event the claim must be handled directly between Buyer and Supplier, Axonex Ltd shall provide contact information to enable Buyer to contact Supplier. In the event the claim will be handled by Axonex Ltd, then Axonex Ltd shall provide Buyer with a return material authorization (“RMA”) for Buyer to return the Goods to Axonex Ltd, and Buyer shall return such Goods to Axonex Ltd in accordance with these Conditions and Axonex Ltd’s then current RMA policy (which shall be made available to Buyer upon request). No Goods may be returned to Axonex Ltd without a valid RMA number displayed on the Goods packaging. Any Goods returned without a valid RMA number displayed on the Goods packaging will be refused or returned. Axonex Ltd shall not be obligated to ship replacement Goods to Buyer until Axonex Ltd is in receipt of the original Goods being returned.

b. Buyer agrees that Axonex Ltd’s sole liability to Buyer regarding any Goods defect claims is limited to the administration of such claims with the Supplier and is expressly contingent upon Axonex Ltd’s ability to obtain a refund, credit or new replacement Goods from the Supplier. Axonex Ltd has no obligation to accept a return of Goods that fail to comply with a Supplier’s policy on Goods returns.

c. Axonex Ltd shall not be liable or responsible for administering any defect or other claim which arises from normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with Supplier’s Goods documentation, modification or alteration not authorised by Supplier, or use in conjunction with a third party product. Axonex Ltd reserves the right, in its sole discretion, to determine whether any Goods are defective.

d. All transport charges incurred in returning or replacing Goods are the responsibility of Buyer.

13. Returns.

a. Buyer shall return Goods to Axonex Ltd in accordance with these Conditions and Axonex Ltd’s then current RMA policy (which shall be made available to Buyer upon request). Any Goods returned pursuant to an RMA issued by Axonex Ltd must be returned to Axonex Ltd within five (5) working days of the date of such RMA.

b. Buyer irrevocably authorizes Axonex Ltd to carry out any necessary tasks related to the repair or replacement of Goods on behalf of Buyer under these Conditions.

c. Unless Axonex Ltd collects Goods using its own carrier, Buyer agrees that Axonex Ltd shall not be liable for any loss or damage to Goods returned to Axonex Ltd.

d. Except for Goods returned pursuant to Clause 12 above, any returns are subject to Axonex Ltd’s sole and absolute discretion and may be subject to a fifteen percent (15%) restocking fee, at Axonex Ltd’s sole discretion.

14. Limitation of Liability.

a. Axonex Ltd’s liability for any direct loss or damage arising in connection with these Conditions and any Contract and whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise shall be limited to, and shall under no circumstances exceed the sum of £500,000. Axonex Ltd shall have no liability under these Conditions or any Contract if Axonex Ltd has not received payment of the total invoice price of the Products giving rise to the claim.

b. Except as expressly provided in these Conditions, Axonex Ltd and its Suppliers shall not be liable to Buyer for any financial or other loss or damage caused to Buyer by reason of any representation, warranty (either express or implied), condition or other term, or any duty at common law; or for any special, indirect, incidental or consequential damages (including loss of profits, revenue, records or data, costs of procurement of substitute products, damage to reputation or goodwill, or any matter beyond its reasonable control) or for any other claims for compensation however caused (whether caused by the negligence of Axonex Ltd, its employees, agents, Suppliers or

otherwise) which arise out of or in connection with these Conditions or a Contract hereunder, even if Axonex Ltd or its Suppliers have been advised of the possibility of such loss, liability or damages.

c. Nothing contained herein shall be construed as excluding or limiting Axonex Ltd’s liability for death or personal injury caused by Axonex Ltd’s negligence, or for breach of implied title to Products.

15. Intellectual Property Rights.

a. Buyer acknowledges that all intellectual property in the Products is owned by the Suppliers or other third parties. Nothing contained herein shall be deemed to grant any right or title to such intellectual property to Buyer. Buyer further agrees not to translate, reverse compile or disassemble any software and agrees to transfer to its customers a copy of any license agreements or other documents included with the Products. Buyer will not remove, alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Products.

b. Buyer understands and agrees that Axonex Ltd will not and has no duty to indemnify, defend or hold Buyer or a third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection the actual or alleged infringement of a third party’s intellectual property rights, except and only to the extent that a Supplier has expressly agreed to offer such indemnification and defence to Buyer on a pass through basis.

c. Save in respect of any intellectual property owned by any Supplier or third party in connection with the provision of the Services by Axonex Ltd, all intellectual property arising from or out of or in connection with the Services shall be owned by Axonex Ltd.

d. When making proposals and agreements with foreign governments which involve any Products, Buyer will take all reasonable steps to ensure that Supplier's proprietary rights in such Products receive the maximum protection available from such foreign government for commercial computer software and related documentation developed solely at private expense.

e. Nothing contained herein shall be construed as authorizing or grant to Buyer any right or license to use any logo, trademark or trade name of Axonex Ltd or its Suppliers, any license of which shall be subject to separate agreement including any then current use policies of Axonex Ltd or its Suppliers, as appropriate.

16. E-System Specific Terms.

a. Buyer is solely responsible for the use of any User ID, password or other forms of identification (collectively “Buyer ID”) for accessing the E-System, and in maintaining the confidentiality of the Buyer ID. Buyer shall immediately notify Axonex Ltd in the event it should lose or misplace or suspect any abuse (actual or attempted) of the Buyer ID. Buyer shall maintain appropriate security policies and procedures to ensure proper use of the Buyer ID. Absent notice from Buyer otherwise, Axonex Ltd shall have the right to rely absolutely on any Purchase Orders submitted through the E-System and treat any Purchase Order submitted through the E-System as a valid and binding offer to purchase.

b. Buyer is solely responsible, at its sole cost and expense, for securing and maintaining its own Internet access, facilities, hardware and software requisite to access the E-System. Buyer agrees that Axonex Ltd cannot guarantee the security or integrity of any data or information exchanged through the Internet or the E-System.

17. Force Majeure.

a. Axonex Ltd shall not be liable to Buyer or be deemed in breach of these Conditions or any Contract by reason of delay or failure to perform if such delay or failure to perform was caused by Force Majeure.

b. In the event of a Force Majeure event: (i) Axonex Ltd shall, as soon as commercially practicable, notify Buyer of such Force Majeure event provided Axonex Ltd shall incur no liability for its failure to give such notice; (ii) Axonex Ltd’s duty to perform shall be suspended for the duration of the Force Majeure event; and (iii) the time of Axonex Ltd’s performance shall be extended by a period equal to the duration of said Force Majeure event.

c. In the event a Force Majeure event should continue for more than ninety (90) days either party may, by written notice to the other, cancel a Contract insofar as Products remain undelivered or incomplete (as the case may be) under said Contract. Upon such cancellation, Axonex Ltd shall have no obligation to deliver and Buyer will have no obligation to accept delivery of the undelivered Products, but the Contract shall remain in full force and effect regarding all Products delivered prior to the date of cancellation.

18. Compliance with Laws; Export.

a. Buyer acknowledges that the Products and any technical data related thereto is licensed or sold subject to and controlled by the export laws of the United State (“US”) including its Export Administration Regulations, the European Union (“EU”) and countries within the European Free Trade Area (“EFTA”) (collectively the “Export Control Laws”) and Buyer hereby agrees not to export, re-export or otherwise distribute Products, or direct products thereof, in violation of any Export Control Laws. Buyer agrees to advise its customers that the Products are subject to and controlled by such Export Control Laws and that the US government and/or the member states of the EU and EFTA may require licensing or other authorisation prior to export.

b. Buyer warrants that it will not export or re-export any Products with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Buyer has obtained prior written approval from the appropriate department of the US Government. Buyer further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products to companies or individuals listed on the Denied Persons List published by the US Department of Commerce.

c. It is Buyer’s sole and exclusive responsibility to obtain any and all appropriate approvals of from the US government and/or member states of the EU and EFTA prior to exporting such Products, or any technical data related thereto, from the United Kingdom. Axonex Ltd shall not be responsible for any costs, liabilities or damages resulting from Buyer’s failure to obtain any such required authorisation. Buyer understands that the Export Control Laws may change from time to time. It is Buyer’s sole and exclusive responsibility to obtain guidance of counsel or other appropriate channels to ensure its compliance with these laws.

d. Buyer warrants that it will not take any action or permit or authorize any action which will render Axonex Ltd liable for a violation of the US Foreign Corrupt Practices Act (the “Act”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or Axonex Ltd in obtaining or retaining business and (a) will not violate or cause Axonex Ltd to violate such Act in connection with the sale and distribution of the Products; and (b) will notify Axonex Ltd in writing if any of its owners, partners, principals, and officers are or become officials, officers or representatives of any government or political party or candidate for political office.

e. Buyer shall comply with EU Directives 2002/95/EC (Restriction on Hazardous Substances and 2002/96/EC dated January 27, 2003 (Waste Electrical and Electronic Equipment) (“WEEE”) generally and as instated within each country into which Products are imported, exported or otherwise distributed by Buyer, such obligation which shall include registering as a “producer” under applicable WEEE legislation. Buyer shall notify Axonex Ltd in the event it should export any of the Products outside of the United Kingdom.

f. Buyer shall indemnify, defend and hold Axonex Ltd harmless from any violation or alleged violation by Buyer of the terms of this Clause. Upon Axonex Ltd’s request, Buyer agrees to confirm, in writing, its compliance with applicable Export Control Laws and the Act.

19. Non-Solicitation.

For a period of twelve (12) months following the date of any Contract hereunder, Buyer hereby agrees not to solicit or induce any employee of Axonex Ltd involved in the marketing, promotion, sale or distribution of Products to Buyer to leave their employment or terminate or breach their contract for services with Axonex Ltd as the case may be, and Buyer shall not appoint, engage, contract or employ such employee to provide services to Buyer. In the event Buyer should breach this Clause, Buyer agrees to pay Axonex Ltd, by way of liquidated damages, a lump sum representing forty percent (40%) of the employee’s annual salary (excluding benefits) and Buyer hereby agrees that such sum is a genuine and reasonable estimate of Axonex Ltd’s loss.

20. Confidential Information.

Buyer agrees that these Conditions, including any Contracts, and all Product related information including pricing and descriptions which are provided by Axonex Ltd to Buyer, regardless of the form in which it is provided, are considered confidential information of Axonex Ltd and its Suppliers (“Confidential Information”). Buyer shall hold such Confidential Information in strict confidence and not use or disclose such Confidential Information to any third party. Buyer further agrees to limit access to such Confidential Information to those of its employees who have a need to know and are subject to written obligations of confidentiality at least as protective of the Confidential

Information as these Conditions. All Confidential Information is provided “AS IS” without any representation or warranty, either express or implied, as to accuracy or completeness. Axonex Ltd aggress to hold, in strict confidence, and not disclose to a third party any sensitive information provided by Buyer which is marked as confidential, proprietary or using similar terms.

21. Miscellaneous.

a. Assignment. Buyer may not transfer or assign these Conditions to a third party by operation of law or otherwise without the prior written consent of Axonex Ltd.

b. Waiver. Failure of Axonex Ltd to enforce any provision of these Conditions or a Contract shall not be deemed a waiver of the right to thereafter enforce that or any other provision of these Conditions or a Contract.

c. Severability. In the event that any provision of these Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of these Conditions will remain in full force and effect.

d. Audit Rights. Buyer shall keep and maintain true and complete records pertaining to its performance of these Conditions or any Contract hereunder in sufficient detail to permit Axonex Ltd to accurately determine whether Buyer has fully complied with their terms. Buyer shall make such records available upon reasonable notice, during regular business hours, for inspection and copying by Axonex Ltd and its representatives. Buyer shall maintain such records for at least two (2) years after the end of the calendar year to which they pertain.

e. Marketing. Buyer agrees that Axonex Ltd may collect, store and use Buyer data, including personal data, for the purpose of facilitating its marketing and sale of the Products, and Buyer hereby consents to such collection, storage and use of Buyer data by Axonex Ltd for these purposes. Notwithstanding the foregoing, Axonex Ltd agrees not to share personal data with third parties without Buyer’s prior consent. Buyer further consents to the use of such data for communicating Product and promotional information to Buyer via email or other electronic means.

f. Choice of Law & Venue. These Conditions shall governed by the laws of England and Wales, and Buyer hereby agrees to submit to the exclusive jurisdiction of the English courts. The United Nation’s Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Conditio