Terms and Policies EMEA

Invoicing Terms and Conditions

These terms and conditions (“Terms and Conditions”) tell the Customer information about Apollo Endosurgery UK Limited and set out the legal terms and conditions on which we sell our products.

Customers place a request for our products (the “Goods”) through submitting an order to us (the “Order”).  On placing an Order these Terms and Conditions will apply to the agreement (the “Contract”).

When we refer to “we”, “us” or “our”, we mean Apollo Endosurgery UK Limited, a company incorporated at St. James Business Park, 10 Grimbald Crag Cl, Knaresborough HG5 8QB (company number 09000573), with the same trading address.

When we refer to “you” or “your” we mean you, the organisation buying Products from us (the “Customer”). Together “us” and “you” may be referred to as the “parties”, or individually the “party”.

If you would like to contact us, please use the contact details below and we will be happy to assist you.

1. ACCEPTANCE:

1. The Customer agrees to be bound exclusively by these Terms and Conditions to the exclusion of any terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms and Conditions and enter into a Contract.
3. The Contract is subject to these Terms and Conditions and you will be asked to confirm that you accept these Terms and Conditions when placing your Order. The Customer acknowledges that it has reviewed these Terms and Conditions in entirety.  If you do not accept these Terms and Conditions in full, you will not be able to place an Order for the Goods from us.
4. On acceptance of these Terms and Conditions, the Order shall be deemed to be accepted, at which point the Contract shall come into existence.
5. The Customer is responsible for ensuring that the terms of the Order and any applicable specification for the Goods, that are agreed in writing between the parties (the “Specification”) submitted by the Customer in the order are complete and accurate.
6. Any terms and conditions that may be contained in any purchase order, or other form shall be absolutely without force and effect, regardless of when received by us.
7. The Customer acknowledges that we sell the Goods set out in the Order solely pursuant to the Terms and Conditions contained within.  None of these Terms and Conditions may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorised representative of us.

2. DELIVERY:

1. We shall ensure that:
   1. the Goods are delivered to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after we notify the Customer that the Goods are ready; and
   2. each delivery of Goods to the Delivery Location is accompanied by a delivery note showing the date of the Order along with all relevant Customer reference numbers, the type and quantity of the Goods and serial numbers if applicable.
2. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3. The Customer is responsible for making suitable arrangements to receive the delivery of the Order.  If the Customer is not able to take delivery of the Goods, our delivery partner will attempt to re-deliver the Goods two (2) more times to the Delivery Location. If there is no response after the third attempt, the products will be returned to the point of origination.
4. If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality, less the price of the Goods.  We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a force majeure event pursuant to clause 3 below or the Customer’s failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
5. The risk in the Goods shall pass to the Customer at point of shipment.
6. Title to the Goods shall not pass to the Customer until we receive payment in full for the Goods.

3. FORCE MAJEURE:

1. We shall not be liable for any failure or delay in performing our obligations under the Contract to the extent that such failure or delay is caused  by any event beyond our reasonable control, which by its nature could not have been foreseen, or if it could have been for seen, was unavoidable, including but not limited to: strikes, differences with workers, lock-outs or other industrial disputes, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labour, energy, raw materials, production facilities, or transportation, natural disasters but not limited to storms, earthquakes, fires and floods or extreme adverse weather conditions, or default of suppliers or subcontractors.
2. Where delays or failures of delivery are caused by labour difficulties, we shall not be obligated to seek or obtain any settlement which, in our sole judgment, is not in our best interest.

4. WARRANTY:

1. The parties warrant that they have the authority to agree and accept these Terms and Conditions.
2. Limitation of liability: we warrant that the Goods covered by these Terms and Conditions conform to their respective Indication for Use and published Specifications. Except as may otherwise be expressly set forth herein, we make no warranties, express or implied, including, but not limited to, any implied warranties of merchant ability or fitness for a particular purpose. In no event will we be responsible for special, indirect, consequential, or incidental damages, such as (without limitations) commercial damage, loss of clientele, of profits or of image, even if we have been advised of the possibility of such damages.
3. Our liability from any and all causes pursuant to these Terms and Conditions shall be limited to general money damages in any Order, regardless of the form in which any legal or equitable action may be brought against us.

5. PRICE CHANGES:

1. The price of the Goods shall be set out in the Order.  Prices are subject to change at any time and from time to time, but changes will not affect any Order which we have confirmed.
2. We take reasonable care to ensure that the prices of the Goods are correct at the time when the relevant information was entered onto the system. However, it is always possible that, despite our efforts, some of the Goods may be incorrectly priced. If we discover a mistake or error in the price of the Goods you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Goods at the correct price or cancelling your order. We do not have to provide the Goods to the Customer at a lower price where we have made an obvious pricing error. We will not process an Order until we have your instructions. If we are unable to contact The Customer using the contact details provided during the order process, we will treat the Order as cancelled.
3. The price of the Goods is exclusive of the costs and charges of packaging and insurance of the Goods, which shall be invoiced to the Customer.

6. PAYMENT; TAXES:

1. If the Customer fails to make the payment due to us under the Contract by the agreed date set out in the respective invoice, then the Customer shall pay interest at the rate for late payment of 4% per annum above the Bank of England’s base rate (or as otherwise required in local markets).  Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.  The Customer shall pay interest together with the overdue amount.
2. In addition, the Customer agrees to reimburse us for any and all expenses we may incur, including reasonable attorney’s fees, in taking any action to collect any amounts due to us. These shall be added to the purchase price amount equal to any sales, use, or equivalent taxes levied or based upon the Goods or their value, unless Customer provides us with an appropriate exemption certificate.
3. The Customer shall pay all amounts due under the Contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).  We may at any time, without limiting any rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by us to the Customer.

7. RETURNS:

1. You may return Goods to us in accordance with our Returned Goods Policy.

8. TERMINATION:

1. Both parties shall be entitled to terminate this Contract immediately without any other formality than sending on termination notice, by notice in writing to the other upon the happening of any of the following events:
   1. if either party is in material breach of the Terms and Conditions;
   2. if a receiver, administrator, administrative receiver or other encumbrancer shall take possession of or is appointed over the whole or any part of the assets of either party or if either party shall enter into an arrangement with or for the benefit of its creditors or if either party is wound up or becomes bankrupt and provided local formalities have been complied with.
2. Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between the Customer and us if the Customer becomes subject to any of the events listed in clause 8.1.2, or we reasonably believe 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.
3. On termination of the Contract for any reason the Customer shall immediately pay to us all of our outstanding unpaid invoices and interest.
4. Termination of the Contract, however arising, shall not affect any of our rights, remedies, obligations and liabilities that have accrued as at termination.

9. THE TITLE AND RISK OF LOSS:

1. All Orders shipped via overnight delivery or next day air delivery will be shipped to Customer FCA APOLLO ENDOSURGERY’S shipping point. We and the Customer will negotiate in good faith regarding any Goods lost, damaged or destroyed while in transit.

10. INDEMNIFICATION:

1. Customer agrees to indemnify us, including our subsidiaries, affiliates, parents, partners, their successors and assigns, and each other of their past and present directors, officers, employees and agents, jointly and severally, from and against any and all losses, damages, liabilities, and claims of any kind, including, without limitation, reasonable attorney’s fees and expenses, arising from any use of our Goods ordered by the Customer other than in accordance with such product’s labelling or any wrongful or negligent acts or omissions of Customer in purchasing, selling or using our products, including, but not limited to, Customer’s failure to charge applicable sales, use, or equivalent taxes when selling such products, Customer’s failure to maintain a valid license or certification with the applicable entity that allows Customer to purchase, sell, or use such products or practice medicine, or any other acts or omissions.
2. If we fail to comply with these Terms and Conditions, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms and Conditions or our negligence, but we are not responsible for any loss or damage that is not foreseeable.  Loss or damage is foreseeable if it was an obvious consequence of our breach or if it was contemplated by you and us at the time we entered into the Contract.  We have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
3. Nothing in this Contract shall limit or exclude our 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;
   • (d) defective products under the Consumer Protection Act 1987 (as amended); or
   • (e) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
4. Subject to clause 10.3, we shall under no circumstances whatsoever be liable to the Customer, wherein contract, tort (including negligence), breach of statutory duty or otherwise for any indirect or consequential loss arising under or in connection with the Contract and our 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 100% of the price of Goods.

11. ORDER ACCEPTANCE:

1. We reserve the right to accept or reject any Order in whole or in part.

12. MODE OF PACKAGING OR SHIPMENT:

1. We reserve the right to pack or ship orders in the most economical manner. However, where Customer requests special packaging or shipping, any additional cost will be billed to and be the responsibility of the Customer.

13. DELIVERY:

1. The Customer is advised that quoted ship dates are based on estimates at the time of quotation and that we will devote our commercially reasonable efforts to meeting such schedules. However, we assume no liability for additional costs or damages resulting from late deliveries.

14. NO LICENCE:

1. The sale of goods covered by these Terms and Conditions shall not confer upon the Customer any licence to manufacture under any patents or proprietary rights owned or controlled by us, our subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all such rights are reserved to us, our subsidiaries, affiliates, or suppliers.

15. ENTIRE AGREEMENT; HEADINGS; VALIDITY:

1. The Contract constitutes the entire agreement between the parties.  The Customer acknowledges that in entering into this Contract it has not been induced to purchase Goods from us by any statement, promise, representation, assurance or warranty not set forth in these Terms and Conditions. These Terms and Conditions contain the entire agreement of us and the Customer and supersede all existing agreements and all other oral or written communication between them concerning its subject matter.
2. These Terms and Conditions shall not be modified in any way except by a writing signed by us and the Customer.
3. The paragraph headings contained herein are intended for convenience of reference only and shall not affect the interpretation of any provision.
4.  If any provision of these Terms and Conditions shall be held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions shall in no way be affected or impaired.
5. The applicability of the Convention on the International Sales of Goods is expressly excluded from these Terms and Conditions.
6. These Terms and Conditions, the Contract and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of England and Wales.  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 these Terms and Conditions or its subject matter or formation.
7. If any provision or part-provision of the Terms and Conditions 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 Terms and Conditions.
8. A waiver of any right or remedy under the Terms and Conditions 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 Terms and Conditions 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.
9. A person who is not a party to the Contract shall not have any rights to enforce the Terms and Conditions.

RETURNED GOODS POLICY

APOLLO ENDOSURGERY will accept for credit APOLLO ENDOSURGERY products returned in accordance with these terms:

• No credit will be issued on opened or damaged product boxes.
• A Returned Goods Authorization from APOLLO ENDOSURGERY is required to return any product.
• Return and Credit will be allowed on product return requests communicated to APOLLO ENDOSURGERY within 30 days after date of invoice.
• All products must then be returned within ten (10) business days of receiving a Returned Goods Authorization from APOLLO ENDOSURGERY.
• APOLLO ENDOSURGERY reserves the right to destroy, without notification, credit, exchange or return to the customer, any returned product that does not conform to these terms.

Returned Materials Authorisation (RMA) is required for any return/exchange prior to goods being sent back. Please contact your Apollo Account Manager or the Apollo Customer Care team to process the RMA. Please do not return any goods prior to obtaining consent and an RMA reference number.

For explants, a Complaint number is required prior to retuning goods by contacting productcomplaints.emea@apolloendo.com .

• Any biologically contaminated explants must be disinfected prior to return to Apollo.
• Please include the completed complaint form with your return.
• For further instructions on the return of explanted devices, contact Apollo at productcomplaints.emea@apolloendo.com

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Appendix 1: Customer Service Contact Numbers