mark’ennovy Personalized Care, S.L. – Standard Terms and Conditions of Sale
1. General basis of sale
1.1. These Conditions apply to all Contracts for sale of Goods and/or performance of Services by mark’ennovy PersonalizedCare, S.L. – here in after also named the Seller or the Company.
1.2. The placing of an Order by the Buyer for the Goods and/or Services shall constitute acceptance of these Conditions not with standing any other terms and conditions subject to which any quotation by mark’ennovy Personalized Care, S.L.is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
1.3. No Order submitted by theBuyer shallbe deemed to be accepted by mark’ennovyPersonalized Care, S.L. unless and until confirmed in writing by mark’ennovy PersonalizedCare, S.L.’s authorized representative.
1.4. No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and mark’ennovy Personalized Care,S.L.
1.5. The Buyer acknowledges that all advice, instructions or recommendations of mark’ennovy Personalized Care, S.L. rely and are dependent upon all the information and technical background given to mark’ennovy Personalized Care, S.L.by the Buyer.
1.6. The Buyer accepts that mark’ennovy bespoke tailormade lenses are supplied under the supervision of an Eye Care Professional (ECP) and are subject to a personal fitting by an ECP and the goods are made for the individual on a personal basis and therefore cannot be offered for sale other than by direct personal contact where diagnostic advice and fitting are critical to the performance of the product. These lenses cannot be returned to mark’ennovy, unless there is any defect in accordance with these terms and conditions. Mark’ennovy is not responsible for any inappropriate use of the lenses or mistake in the specifications provided to mark’ennovy or any inaccurate advice of the ECP.
2. Orders and specifications
2.1. The Buyer shall be responsible to mark’ennovy Personalized Care, S.L. for ensuring the accuracy of the terms of any Order (including any applicable Specification) submitted by the Buyer, and for giving mark’ennovy PersonalizedCare, S.L. any necessary information relating to the Goods or Services.
2.2. The Quantity, Description, Type of Lens, Base Curve, Diameter, Cylinder, Axis, and Power of the Goods, be as specified in the Order and any applicable Specification asset out either in mark’ennovy Personalized Care, S.L.’s quotation or Own Brand/Private Label Agreement.
2.3. All drawings, illustrations or any product literature or other publicationsof mark’ennovy Personalized Care, S.L.must be regarded as approximations only.
2.4. AnySpecification supplied by mark’ennovyPersonalizedCare, S.L.to the Buyer in connection with the Contract, together with all intellectual property rights in the Specification, shall be the exclusive property of mark’ennovy Personalized Care, S.L. The Buyer shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Buyer, or as required for the purpose of the Contract. Upon request of mark’ennovy Personalized Care, S.L. the Buyer will return to mark’ennovy Personalized care, S.L. any documents (or other media) in or upon which any part of the Specification has been supplied by mark’ennovy Personalized Care, S.L. and shall not retain copies there of.
2.5. mark’ennovy Personalized Care, S.L. reserves the right to make any changes in the Specification of the Goods or Services which are required to conform with any statutory or other regulatory requirements applicable to them.
2.6. No Order which has been accepted by mark’ennovy PersonalizedCare, S.L. may be cancelled by the Buyer except with the agreement in writing of mark’ennovy PersonalizedCare, S.L. and on terms that the Buyer shall indemnify mark’ennovy Personalized care, S.L. in full against all loss, costs, damages, charges and expenses incurred by mark’ennovy Personalized Care, S.L. as a result of cancellation.
2.7. No order which has been accepted by mark’ennovy Personalized Care, S.L. may be changed or altered by the Buyer except with the agreement in writing of mark’ennovy Personalized Care, S.L. Payment by the Buyer of a discretionary charge to mark’ennovy Personalized Care, S.L. can be applied.
3.1. The Price shall be mark’ennovy Personalized Care, S.L.’s quoted price. The Price quoted is valid for 30 days only, after which time they may be altered without giving notice to the Buyer.
3.2. mark’ennovy Personalized Care, S.L. reserves the right, by giving notice to the Buyer at anytime before delivery,to increase the Price to reflect any increase in the cost to mark’ennovy Personalized Care, S.L. which is due to any factor beyond the control of the Company, any change in delivery dates, quantities or the Specification which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
3.3. Except as otherwise statedunder theterms ofthe Order and unless otherwise agreed in writing between theBuyer and mark’ennovy PersonalizedCare, S.L., thePrice is given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company’s premises, theBuyer shall beliable to pay the Company charges for transport, packaging and insurance, or other charges as priority order or special parameters.
3.4. The Price isexclusive of any applicable value added tax, which theBuyer shall be additionally liableto pay to mark’ennovyPersonalized Care, S.L.
3.5. TheCompany has the right to changewithout notice the published list pricesreferenced in the Company’s StandardPrice List. Such prices donot include sales, excise, use or other taxes (other than taxes based on income) now in effect or hereafter levied because of this transaction. Buyer shall pay all such taxes.
4. Payment Terms
4.1. Unless otherwise agreed in writing payment of invoicesshall bemade in full without any deduction or set-off within 30 days of the invoice date. The Company reservestheright torequire alternativepayment terms, including, without limitation,Sight Draft, Letter ofCredit or Payment in Advance. Ifshipments are delayed byBuyer, payment shall be made basedon the contract price and percent ofcompletion. Buyer shall be liable for theprice of all productssubstantially conforming totheContract,notwithstanding that Buyer maynot have accepted, or may have revokedacceptance of same. Buyer shall be deemed to haveaccepted the accuracy andcontent of all invoices unless Buyer notifies mark’ennovy Personalized Care,S.L.in writing, of any discrepancieson or beforethe due date of payment.
4.2. Payment delay by the Buyer of the Products sold to it by mar’ennovy will incur in the obligation to pay the legal default interest rate governed by article 7.2 of Act 3/2004. mark’ennovy reserves the right to demand payment in advance for the Products, provided there is a default on payment by the Buyer.
4.3. Remittances will be received by a bank simply as clearing agency.The receivingbank has no authority todetermine whether or not theamount remitted constitutes payment in full. Remittances marked toindicate payment in full will be deposited by the bank notwithstanding such markings and such deposit shall not indicate Seller’s acceptance ofthe remittance as payment in fullunlesstheremittance actuallyconstitutes payment ofall sums owed.
4.4 Time for payment shall be of the essence and if payment is not madein full by the due date mark’ennovy Personalized Care, S.L.may without prejudice to anyother remedy treat thisas a material breach of contract which could affect warranties and other contractualterms.
Seller may, at any time and in its sole discretion, limit or cancel the credit of Buyer as to time and amount, and as a consequence, may demand payment in cash before delivery of any goods under thiscontract.
TheBuyer may inspect the Goods at the place ofmanufacture. TheBuyer shall accept any tender of the Goods by mark’ennovy Personalized Care, S.L.which substantiallyconform tothe description of the Goods set forth herein.The Buyer shall be deemed to have accepted any product and theBuyer’s right to cancel, reject or claim damages for breach of warranty or breach of the Company’s obligation under this contract shall cease,unless theBuyer gives theCompany notice in writing oftheSeller’s breach:
6.1 in thecase of defects discoverable through inspection, 14 days after arrival ofthe shipment; or
6.2 in thecase of defectsnot discoverable through inspection, 30 days after invoice date. In thecaseof non-conforming Goods, Buyer shall immediately notify theCompany whether or not theBuyer will continue toaccept similarly non-conformingGoods and acceptanceofany non-conforming Goods shall constitute a waiver bytheBuyer of specification requirements for said Goods. In any event,when theproduct shallhave been altered from its originalstatus, theBuyer shall be deemed to have acceptedthe Goods.
The Buyer’s acceptance of Goods tendered under this Contract shall be final and irrevocable.
mark’ennovy Personalized Care, S.L. – Standard Terms and Conditions of Sale
Delivery of theGoods shall bemade ex-works unless otherwiseindicated on theface of this Contract. mark’ennovy PersonalizedCare, S.L. will use every reasonable effort to effect shipment on or before the date indicated. TheCompany shall not be liable, directly or indirectly, for any delayor failure in performance of Servicesor delivery of Goodsor inability to perform or deliver where such delay, failure or inability arises or results from any cause beyond the Company’s control or beyondthe controlof mark’ennovy PersonalizedCare, S.L.’s suppliers or contractors including,but not limitedto, strike, boycott,or other labor disputes, embargo, government regulations, inabilityor delay in obtainingmaterials.In no event shall theCompany, in case ofdelays, nonperformance, or otherwise, be liable to the Buyer or any third party for anyconsequential, special or contingent damages. In the event ofany such delay or failure in performance, theCompany shallhavesuch additional timewithin which toperform its obligationshereunder as mayreasonably benecessary under the circumstances, and the Company shall also havethe right,to the extent necessary in theCompany’s reasonable judgment,toapportion fairly among its various customers in such a manner as theCompany may consider equitable, the Goods then available for delivery.If as a result of anysuch contingency, mark’ennovy PersonalizedCare, S.L.is unable to perform this contract in whole or in part, then to the extent that it isunable to perform, the contract shall be deemed terminatedwithout liabilityto either party, but shall remain in effect as tothe unaffected portion of the contract, if any.
8. Divisibility clause
Thiscontract is divisible. Each deliverymade hereunder shall be deemed to arisefrom a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with theterms of payment provided for herein, without reference to andnotwithstanding any defect of default in deliveryofany other installment
9. Mark’ennovy personalized care, S.L.’s liability
Ifthe Buyer timelynotifies theCompany in writing under the terms hereof of a claimed defect Buyer shall concurrentlyoffer the Company,the opportunity to investigatetheclaim andto replace thedefective Goods with conformingGoods at theex-workspoint specified in thiscontract.Failure tooffer theCompany such opportunityshall constitute acceptanceby Buyer and waiver of allclaims for defects.
Liability for any amount CLAIMED for a DEFECT IN ANY PRODUCT DELIVERED BY SELLER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT ON WHICH THE CLAIM IS BASED. Replacement of defective Goods or repayment of thepurchase price for anysuch product will be made only upon return ofthedefectiveproduct. Specifically, and without limiting the generality oftheforegoing.SELLER SHALL NOT BE RESPONSIBLE OR LIABLE TO BUYER OR TOANY THIRD PARTY FOR ANY LOST PROFITS,OR INCIDENTAL, OR CONSEQUENTIAL LOSS.
10. Buyers responsibilities
If the Buyer fails, with or without cause,to furnish theCompany with specifications and/or instructions for, or refusesto accept deliveriesof any productssold under this contract, or is otherwise in default under or repudiates this contract or any other contract with the Company or failsto pay when due any invoice under this contract, then in addition toany and all remedies allowed by law, the Company without notice (1) may bill and declare due and payable all undelivered Goods under this or any other contract between theCompany and Buyer and/or (2) may defer shipment under this or any other contract between Buyer and the Company until such default,breach or repudiation isremoved and/or (3) maycancel any undelivered portion ofthis and/or any other contract in wholeor in part (Buyer remaining liablefor damages).
11. Intellectual property indemnity
If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes any intellectual propertyrights of any third party then, unless theclaim arises from the use of any drawing, design or specification supplied bythe Buyer, theCompany shallreimburse the Buyer against all reasonable loss and damages awardedagainst or incurred bytheBuyer in connection with theclaim, providedthat theCompany is duly notified by Buyer of the corresponding claim and given full controlof any proceedings or negotiations in connection with any such claim and theBuyer shall giveall assistance to the Company as it may require and take such steps as mark’ennovy Personalized Care sl mayreasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Company is liableto indemnifythe Buyer under this clause.
12. Buyers indemnity
TheBuyer shall indemnify theCompany and keep it indemnified for the duration of the Contract against all injury (including death)to any persons and anyloss and/or damage as a result of any act, default or negligence by the Buyer and its employees or agents(other than theCompany or its sub-contractors) and against allclaims, demands, proceedings, damages, costs, charges andexpenses whatsoever in respect there of or in relation the reto.
13. Insolvency of the buyer
IftheBuyer initiates an insolvency proceeding,makes any voluntary arrangement with its creditors, becomes bankrupt or becomessubject to an administration order or goes into liquidation or mark’ennovy reasonablyapprehendsthat any oftheevents mentionedabove is about to occur then the Company shall beentitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to theBuyer, and if theGoods have been delivered but not paid for the price shallbecome immediately dueand payable notwithstanding anyprevious agreement or arrangement tothecontrary and all Goods will remain theproperty of theCompany until fully paid for and aretraceable by lot number identified on the dispatch note.
SELLERSPECIFICALLY EXCLUDES ALL EXPRESS WARRANTIES ANDMAKES NO IMPLIED WARRANTY THAT THE GOODS SOLD UNDER THIS AGREEMENT ARE MERCHANTABLEOR AREFIT FOR ANY PARTICULAR PURPOSE, except such warranties expressly identified as warrantiesasare set forth in Seller’s operating manual, or labellingsupplied with the Goods covering such product. IfBuyer furnishes specifications toSeller, Buyer agrees to holdSeller harmless against any claim that arises out of compliance with the specifications. Any description oftheGoods contained in thiscontract isfor the sole purpose of identifying them, and anysuch description is not part of the basis of the sale, and does not constitute a warranty that the Goods shall conform to that description. Any sample or model used in connection with this contract is for illustrative purposes only, is not part of the basis of the sales, and is not to be construed as a warranty that the goods willconform to the sample or model.
15.1.The Company shall not be liable to theBuyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any ofthe Company’s obligations in relation tothe Goods or Services, if the delay or failure was due to any cause beyond theCompany’s reasonablecontrol.
15.2. Anynotice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that party asits registered officeor principle place of business or such other address asmay at the relevant time have been notified pursuant tothis provision to the party giving the notice.
15.3. No waiver by the Company of any breach of the Contract by the Company shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.4. Ifany provision of these Conditions is held by any competent authorityto be invalid or unenforceable in whole or in part the validity of the other provisions of theseConditions and theremainder of theprovision in question shall not be affected thereby.
15.5. TheContract shall be governed by the laws of Spain and both parties agree to submit all disputes arising or related to this agreement to the courts of the city of Madrid and they waive any other jurisdiction to which they may be entitiled.