Commercial Terms of Sale

BRASS MONKEY HEALTH LTD
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

1 Basis of Contract
1.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
1.3 The Order shall only be deemed to be accepted when Brass Monkey issues a written acceptance of the Order, at which point the Contract shall come into existence.
1.4 Any samples, drawings or advertising produced by Brass Monkey and any illustrations contained on Brass Monkey’s website 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 and this is not sale by sample.
1.5 A quotation for the Goods given by Brass Monkey shall not constitute an offer. A quotation shall only be valid for a period of 7 Business Days from its date of issue.

2 Goods
2.1 The Goods are as described on Brass Monkey’s website from time to time, as modified by any applicable Specification.
2.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Brass Monkey against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Brass Monkey in connection with any claim made against Brass Monkey for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Brass Monkey’s use of the Specification and Brass Monkey may recover on demand all sums as a debt. This clause  2.2 shall survive termination of the Contract.
2.3 Brass Monkey reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement and Brass Monkey shall notify the Customer of any such amendment.

3 Delivery
3.1 Brass Monkey shall, unless otherwise expressly agreed between the parties, 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 Brass Monkey notifies the Customer that the Goods are ready.
3.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
3.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Brass Monkey shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, the Customer’s default or the Customer’s failure to provide Brass Monkey or its delivery partners with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, including in relation to customs clearance.
3.4 If the Customer fails to accept delivery of the Goods within 3 Business Days of Brass Monkey notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Brass Monkey’s failure to comply with its obligations under the Contract in respect of the Goods:
3.4.1 delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which Brass Monkey notified the Customer that the Goods were ready; and
3.4.2 Brass Monkey shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
3.5 If 10 Business Days after the day on which Brass Monkey notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, Brass Monkey may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

4 Supply of Services
4.1 Brass Monkey shall, on agreement between the parties, provide to the Customer a measurement and/or installation service in respect of the Goods (“Installation Services”) as set out in the Order or in an email following a site visit (“Confirmation Email”).
4.2 If and to the extent that Brass Monkey agrees to provide Installation Services that Customer acknowledges and accepts that Brass Monkey shall only be responsible for the Installation Services as
set out in the Order or Confirmation Email.
4.3 Where any pre-installation works are to be carried out at the Customer’s premises by any third party:
4.3.1 Brass Monkey shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from such works; and
4.3.2 the Customer shall reimburse Brass Monkey on written demand for any costs or losses sustained or incurred by Brass Monkey arising directly or indirectly from such works.
4.4 On request from the Customer, Brass Monkey may provide after-sale repair and maintenance services in respect of the Goods (“Maintenance Services”).
4.5 Maintenance Services will be charged on a time and materials basis calculated in accordance with Brass Monkey’s daily fee rates as set out on Brass Monkey’s website from time to time.
4.6 The Customer acknowledges and accepts that Brass Monkey shall also be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Brass Monkey engages in connection with the Maintenance Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Brass Monkey for the performance of the Maintenance Services, and for the cost of any materials. Such expenses shall be as set out in the Order or Confirmation Email.
4.7 Brass Monkey shall, if applicable, provide any Maintenance Services or Installation Services using reasonable care and skill.
4.8 The Customer shall:
4.8.1 co-operate with Brass Monkey in all matters relating to the Services;
4.8.2 provide Brass Monkey, its employees, agents, consultants and subcontractors, with access to the Customer premises, office accommodation and other facilities as reasonably required by Brass Monkey;
4.8.3 provide Brass Monkey with such information and materials as Brass Monkey may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.8.4 prepare the Customer premises for the supply of the Services, including in respect of any pre-installation works required; and
4.8.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
4.9 These Conditions shall apply to any future provision of Services requested by the Customer.
4.10 If Brass Monkey’s performance of any of its obligations under the Contract is prevented or delayed due to a failure by the Customer of its obligations under clause 4.8 , without limiting or affecting any other right or remedy available to it:
4.10.1 Brass Monkey may suspend performance of the Services;
4.10.2 Brass Monkey shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Brass Monkey failure or delay to perform any of its obligations; and
4.10.3 the Customer shall reimburse Brass Monkey on written demand for any costs or losses sustained or incurred by Brass Monkey arising directly or indirectly from such failure.

5 Quality
5.1 Brass Monkey warrants that on delivery, and for a period of 2 years from the date of delivery (“Warranty Period”), the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification; and
5.1.2 be free from material defects in design, material and workmanship;
5.2 Subject to clause  5.3 , if:
5.2.1 the Customer gives notice in writing to Brass Monkey during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause  5.1 ; and
5.2.2 Brass Monkey is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Brass Monkey) returns such Goods to Brass Monkey’s place of business at Brass Monkey’s cost,
Brass Monkey shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Brass Monkey shall not be liable for the Goods’ failure to comply with the warranty set out in clause  5.1
if:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause  5.2 ;
5.3.2 the defect arises because the Customer failed to follow Brass Monkey’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods including that information contained in the quick start guide provided to the Customer, or (if there are none) good trade practice
regarding the same;
5.3.3 the defect arises as a result of Brass Monkey following any drawing, design or specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of Brass Monkey;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description and any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause  4 , Brass Monkey shall have no liability to the Customer 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 Brass Monkey.

6 Title and Risk
6.1 Risk in the Goods shall pass to the Customer on completion of delivery (or where the Customer is collecting the Goods, at the point when the Customer takes possession of the goods).
6.2 Title to the Goods shall not pass to the Customer until Brass Monkey (or any appointed finance partner of Brass Monkey) receives payment in full from the Customer (in cash or cleared funds) for the Goods in
respect of which payment has become due, in which case title to the Goods shall pass at the time of payment.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as Brass Monkey bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Brass Monkey’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify Brass Monkey immediately if it becomes subject to any of the events listed in clause  9.1.3 to clause  9.1.5 ; and
6.3.6 give Brass Monkey such information as Brass Monkey may reasonably require from time to time relating to:
6.3.6.1 the Goods; and
6.3.6.2 the ongoing financial position of the Customer.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to an Insolvency Event, or Brass Monkey reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, and without limiting any other right or remedy Brass Monkey may have, Brass Monkey may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. Brass Monkey will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from Brass Monkey.

7 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 Brass Monkey’s price list published on its website, as amended from time to time, in force as at the date of delivery.
7.2 Brass Monkey may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond Brass Monkey’s control (including foreign exchange fluctuations, increases in taxes
and duties, and increases in utility costs, labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Brass Monkey adequate or accurate information or instructions.
7.3 The price of the Goods excludes amounts in respect of value added tax (“VAT”) (where applicable), which the Customer shall additionally be liable to pay to Brass Monkey at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.4 If the Goods are delivered outside of the UK, the price of the Goods may be subject to import duties and taxes which are applied when the delivery reaches that destination. The Customer shall additionally be liable for payment of any such import duties and taxes. Please note that Brass Monkey have no control
over these charges and Brass Monkey cannot predict their amount.
7.5 The price of the Goods as set out in the Order includes the costs and charges of packaging, insurance and transport of the Goods.
7.6 The Customer shall pay each invoice submitted by Brass Monkey as set out in the Order, or, if no payment plan is set out in the Order the Customer shall pay a sum equal to 60% of the total cost of the Order when the Order is placed and a sum equal to 40% of the total cost of the Order on delivery. Time for payment shall be of the essence of the Contract.
7.7 If the Customer fails to make a payment due to Brass Monkey under the Contract by the due date, then, without limiting Brass Monkey’s remedies under clause  9 , the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
Interest under this clause  7.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any setoff, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Brass Monkey may at any time, without limiting any other rights or remedies it may have, set off any amount
owing to it by the Customer against any amount payable by Brass Monkey to the Customer.

8 Limitation of Liability
8.1 References to liability in this clause  8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits or excludes any liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.2.4 defective products under the Consumer Protection Act 1987; or
8.2.5 any other matter that cannot be limited or excluded at law.
8.3 Subject to clause  8.2 and clause 8.4 , Brass Monkey’s total liability to the Customer shall not exceed a sum equal to 100% of the fees paid under the Contract under which the liability has arisen.
8.4 Subject to clause  8.2 , the following types of loss are wholly excluded:
8.4.1 loss of profits;
8.4.2 loss of sales or business;
8.4.3 loss of agreements or contracts;
8.4.4 loss of anticipated savings;
8.4.5 loss of use or corruption of software, data or information;
8.4.6 loss of or damage to goodwill; and
8.4.7 indirect or consequential loss.
8.5 This clause  8 shall survive termination of the Contract.
8.6 Brass Monkey hereby excludes to the fullest extent permitted in law, all conditions and warranties, whether express (other than as set out in these Conditions) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
8.7 The Customer acknowledges that the above provisions of this clause 8 are reasonable and reflected in the price which would be higher without those provisions, and the Customer accepts such risk accordingly.

9 Termination
9.1 Without limiting its other rights or remedies, Brass Monkey may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer fails to pay any amount due under the Contract on the due date for payment;
9.1.2 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.1.3 the Customer suffers an Insolvency Event;
9.1.4 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.5 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Brass Monkey may suspend provision of the Goods under the Contract or any other contract between the Customer and Brass Monkey if the Customer becomes subject to any of the events listed in clause  9.1.3 to clause  9.1.5 , or Brass Monkey reasonably believes
that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.3 On termination of the Contract for any reason the Customer shall immediately pay to Brass Monkey all of Brass Monkey’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Brass Monkey shall submit an invoice, which shall be payable by
the Customer immediately on receipt.
9.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10 Force Majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly.

11 Confidential Information
11.1 Each party undertakes that it shall not at any time, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2 .
11.2 Each party may disclose the other party confidential information:
11.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives,
contractors, subcontractors or advisers to whom it discloses the other party confidential information comply with this 11 ; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12 Intellectual Property Rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Goods (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Brass Monkey.
12.2 No right or licence is granted to the Customer in respect of the Intellectual Property Rights of Brass Monkey, except the right to use, or re-sell the Goods in the Customer’s ordinary course of business.

13 General
13.1 Assignment and other dealings
13.1.1 Brass Monkey may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
13.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Brass Monkey.
13.2 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
13.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause  13.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible,
achieves the intended commercial result of the original provision.
13.6 Notices
13.6.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
13.6.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its
registered office (if a company) or its principal place of business (in any other case); or
13.6.1.2 sent by email to the email address notified to the party from time to time.
13.6.2 Any notice shall be deemed to have been received:
13.6.2.1 if delivered by hand, at the time the notice is left at the proper address;
13.6.2.2 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; or
13.6.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
13.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.7 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.8 Governing law and jurisdiction
13.8.1 The Contract, and any dispute or claim (including noncontractual 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.
13.8.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation save that claims for injunctive relief in relation to allegations of
breach of confidence and any claims relating to Intellectual Property Rights may be brought in any competent jurisdiction.

14 Definitions and Interpretation
14.1 The definitions and rules of interpretation set out in this clause 14 apply to these terms and conditions:
“Brass Monkey” Brass Monkey Health Ltd (a company registered in England and Wales with company number 13242593) having its registered address at Unit 25, Street 6 South, Thorp Arch Trading Estate, Wetherby, LS23 7FD, UK;

“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

“Business Hours” the period from 9.00am to 5.30pm on any Business Day;
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause  13.3 ;

“Contract” the contract between Brass Monkey and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
“Customer” the person or firm who purchases the Goods from Brass Monkey;
“Delivery Location” has the meaning given in clause  3.1 ;
“Force Majeure Event” an event, circumstance or cause beyond a party’s reasonable control;
“Goods” the goods (or any part of them) set out in the Order;
“Installation Services” has the meaning given in clause 4.1 ;
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfaircompetition, rights in designs, [rights in computer software, 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;

“Insolvency Event” the other party: (a) enters liquidation or a winding up petition is presented against the company; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes
to make any arrangements with its creditors or passes a resolution to place
the company into liquidation; or (d) suffers an event which, under the law of a
different country, is equivalent to any of the previously specified acts or
events;

“Maintenance Services” has the meaning given in clause 4.4 ;
“Order” the Customer’s order for the Goods including Installation Services and
Maintenance Services, if required, as set out in the order confirmation email
issued by Brass Monkey;

“Services” the Installation Services and/or Maintenance Services provided by Brass Monkey to the Customer as set out in any Order;

“Specification” any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Brass Monkey in relation to any Order; and

“Warranty Period” has the meaning given in clause  5.1 .
14.2 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that
legislation or legislative provision.
14.3 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to “writing” or “written” excludes fax but not email.