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These Conditions set out the terms on which Omnicell ("we" or "us") have agreed to supply goods to the individual, firm or company to whom our quotation is addressed or whose order is accepted by us ("you"). By signing below you confirm that you have received a copy of these terms, and that you accept that they apply in the case of any order placed by you with Omnicell.
"Contract" means any contract formed between you and us for the sale and supply of Goods and/or Services which shall comprise, our written specification/quotation/order acknowledgment, these Conditions and any other terms and conditions that we may bring to your attention.
"Consumables" means any packaging, labels, bags or similar goods or materials that are intended to be used and replaced which we supply to you.
"Customised Goods" means any Consumables that are specifically made to your specification.
"Equipment" means any heat sealing, pack filling, storage, de-blistering or similar equipment which we supply to you.
"Goods" means any Consumables, Equipment or other goods and materials we supply to you
"Price" means the price specified in our quotation or, if different, in our order acknowledgement.
"Services" means any installation, support, maintenance, training or other services which we supply to you.
2.1 Each order or acceptance of a quotation for Goods and/or Services by you shall be deemed to be an offer by you to buy Goods and/or Services from us subject to these Conditions.
2.2 Subject to clause 2.3, we will not be bound by any different or additional terms or conditions or any variations to any Contract unless they are expressly accepted by us in writing.
2.3 If an order or acceptance of a quotation relates in whole or in part to Equipment and/or Services the Contract may be subject to additional terms and conditions which may be supplied to you together with our quotation.
2.4 No order or acceptance of a quotation shall be deemed to be accepted by us until we issue a written acknowledgement of the order or (if earlier) we deliver the Goods to you.
3.1 We will deliver the Goods at the place agreed in writing or, if none, at your normal place of business.
3.2 We will use all reasonable endeavours to deliver: Consumables within such a time period as may be agreed with the customer from time to time; and Equipment within the timescale indicated in our order acknowledgement. However time for delivery of the Goods shall not be of the essence and, accordingly, we accept no responsibility or liability in the event that we are unable for any reason to keep to any applicable timescale.
3.3 When delivery is to be made by instalments, each instalment shall be regarded as a separate Contract such that any defective or non-delivery in respect of any one or more instalments shall not entitle you to refuse to accept or pay for any other instalment or Contract.
3.4 We may suspend or cease delivery of Goods at our discretion if at any time you are in breach of your obligations under these Conditions or we have reason to believe that you may not be able to pay your debts as they fall due and in any such case we shall notify you in writing whereupon we shall have no further liability or obligation to you.
4.1 On delivery of Goods you will be asked to sign for receipt of the consignment. The quantity of any consignment of Goods as recorded by us upon despatch shall be conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary.
4.2 Any discrepancies between those Goods delivered and those ordered, and any damaged Goods must be notified, to us by 5pm on the working day following the day of delivery. To do this please call our customer service line (0113 270 0723) and speak to the Sales Administrator or leave a message with relevant details of the problem on our answer phone at weekends or out of office hours. Should both parties agree it to be appropriate, we will then send you a damage report form, which you should complete and return to us by post.
4.3 You must provide us with a reasonable opportunity to inspect any damaged consignment and investigate any short delivery.
4.4 If you fail to give notice as specified in section 4.2 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Goods shall conclusively be presumed to comply with our written specification/quotation/order acknowledgement and, accordingly, you shall be deemed to have accepted the delivery of the Goods in question and we shall have no liability to you with respect to that delivery (except in relation to liability for any latent defects).
4.5 If you properly reject any delivery of the Goods that do not comply with our written specification/quotation/order acknowledgement then provided that the Goods have been properly stored by you we will at our option either replace the Goods within a reasonable time or issue a credit note at the pro rata Price against any invoice raised for such Goods. We shall have no further liability in respect thereof. Provided that the defect arises solely as a result of faulty Goods delivered by us, any replacement shall be carried out free of charge.
5.1 Invoices shall be sent in relation to each Contract on the day the Goods are despatched and/or the Services are undertaken. You shall pay the Price in the manner and at the times mentioned in our order acknowledgement or, if there is no such manner or times mentioned, not later than 30 days after the end of the month in which the invoice was issued. Time for payment shall be of the essence.
5.2 The Price specified in any quotation shall be valid for a period of 30 days from the date stated on it following which we reserve the right to vary the Price and issue a revised quotation. The presentation of a revised quotation shall supersede any previous quotation relating to those Goods and/or Services.
5.3 Unless otherwise stated all Prices are exclusive of VAT and any other applicable taxes, duties, delivery and packaging charges, all of which amounts you shall pay in addition when paying for the Goods and/or Services.
5.4 Failure by you to pay the Price or any instalment thereof in due time shall entitle us to treat such failure as a repudiation of the Contract by you and require you to make immediate payment of all monies due or becoming due to us and to recover from you damages for such breach of contract and/or at our option to charge interest in accordance with section 5.7. Furthermore, we reserve the right to withdraw any discounts that we have agreed with you and charge our usual retail price in relation to those Goods and/or Services.
5.5 You shall make all payments due in full without any deduction whether by way of set-off, counterclaim, discount or otherwise.
5.6 We reserve the right at any time to withhold credit facilities or to limit the period of credit that we grant to you.
5.7 If payment is not made in full by the due date we may charge interest on the amount outstanding at the rate of 3% above Barclays Bank plc base rate applicable from time to time until payment is made in full.
6.1 If we are unable through circumstances beyond our control (including your refusal to accept delivery for any reason or your failure to give adequate instructions for delivery) to deliver the Goods risk in the Goods shall pass to you, the Goods shall be deemed to have been delivered and we shall be entitled to store the Goods or to arrange storage until actual delivery is made, whereupon you shall be liable for all related costs and expenses (including storage and insurance).
6.2 If you submit an order in respect of Customised Goods and we agree to delay delivery of all or part of those Customised Goods at your request:
6.2.1 risk in the entire order of Customised Goods shall pass to you on the earlier of:
6.2.2 all Customised Goods ordered shall be deemed to have been delivered on the date risk passes in accordance with clause 6.2.1, but we shall at your request store or arrange storage for all or part of Customised Goods until actual delivery is made, whereupon you shall be liable for all related costs and expenses (including storage and insurance);
6.2.3 we may defer issuing an invoice in respect of all or part of the Customised Goods ordered until actual delivery is made but we reserve the right to issue an invoice in respect of the entire order of Customised Goods at any time after the date risk passes in accordance with clause 6.2.1.
7.1 You acknowledge that you rely on your own skill and judgment in determining the suitability of the Goods for any particular purpose. We give no assurances as to suitability of Goods. You are alone responsible for ensuring that the Goods are sufficient and suitable for your purpose save only in so far as a person authorised to sign on our behalf has expressly agreed in writing that you may rely on our advice.
7.2 Subject to clauses 7.3 and 7.4, the Goods and/or Services shall be in accordance with any specification agreed in writing between you and us and shall be of satisfactory quality.
7.3 We reserve the right to alter the specification of our Goods from time to time. However, we shall notify you of any such changes and shall use reasonable endeavours to offer you a suitable replacement.
7.4 The dimensions of our Equipment are only approximate and may change, we give no warranty in respect of the dimensions and accept no liability in the event that the dimensions vary from those given in our quotation. Furthermore, we are continually developing and improving our Equipment and we reserve the right to supply you Equipment of a better specification than that which you ordered.
7.5 All warranties, conditions and other terms implied by statute or common law (save for conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded.
8.1 Goods will remain our property, notwithstanding delivery to you, until you have paid to us in full all monies owed to us by you in relation both to that consignment and all other consignments of Goods under any Contract. For the avoidance of doubt, Equipment supplied on a rental basis shall remain our property in accordance with the additional terms and conditions supplied by us notwithstanding payment by you.
8.2 Whilst Goods remain our property you shall take proper care of them and keep them separate from your own goods and stored so as to clearly identified as belonging to us.
8.3 Your right to possession of the Goods shall terminate if at any time you shall have any distress or execution levied on any of your assets or an administrative receiver shall be appointed in respect of your assets or a petition shall be presented for your winding-up or for an administration order or bankruptcy proceedings shall be commenced or in any other circumstances where we have cause to doubt your ability to pay for Goods which we have delivered to you.
8.4 You grant us, our agents and our employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where your right to possession has terminated, to recover them. Where we recover possession of Goods title in which has not yet passed to you, you shall still have the obligation to pay the Price in accordance with clause 5 if those Goods are no longer of satisfactory quality.
8.5 The Goods shall be at your risk as from the time they arrive at the place of delivery.
9.1 Subject to clause 9.3, you may cancel an order for Consumables at any time prior to the agreed delivery date. However, if you cancel within 48 hours of the agreed delivery date, we reserve the right to charge you for any reasonable costs and expenses we may have incurred in respect of your order.
9.2 Subject to the agreement with Omnicell customer service line (telephone number 0113 270 0723), Consumables that have been delivered and are no longer required or which have been ordered in error may be accepted for return within seven days of the agreed delivery date. All items must be undamaged in their original containers, and in every respect unused and intact. Items shall be returned at your expense to such address and with such documentation as may be agreed with the Omnicell customer service line . A handling charge of 10% (or £5, which ever is the greater) is payable on each item returned.
9.3 We shall not be bound by any cancellation in respect of any Customised Goods or Equipment unless you meet any cancellation deadlines that may have been specified or, if none are specified, then unless you notify us of such cancellation within a reasonable time before the agreed delivery date (taking into account the nature of the Customised Goods or Equipment ordered and lead times). Any cancellation, otherwise than prior to any specified deadline, shall not affect your liability for payment in respect of the Customised Goods or Equipment concerned.
10.1 Save as set out in clause 4.5, the following provisions set out our entire financial liability (including liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
10.2 Nothing in these Conditions shall operate so as to exclude or restrict our liability for death or personal injury caused by reason of our negligence or that of our employees or agents.
10.3 Subject to clause 10.2, we shall not be liable for:
10.4 Subject to clause 10.2, our total liability to you whether in contract, tort (including negligence or breach of statutory duty), breach of third party rights or otherwise howsoever arising shall not in any event exceed the Price paid by you for the Goods and/or Services delivered or, in the case of liability which relates specifically to certain Goods or Services delivered, the Price paid by you for those Goods or Services.
10.5 Termination of any Contract for whatever reason shall not affect any rights or liabilities which have already accrued at the time of termination.
11.1 We will not in any event be responsible for any delay in or failure to perform any Contract which is caused by factors beyond our reasonable control including acts of God, acts of governmental or any other lawful authority, strike, lock-out, blockade or other industrial action, war, riot, civil commotion, flood, fire, lightning, explosion, epidemic, trade embargo or any other act or omission on the part of any third party or sub-contractor, interruption or shortage of diesel, petrol or other fuel for transport or any failure of electricity or other fuel or equipment ("Force Majeure").
11.2 In the event of Force Majeure, we will use reasonable endeavours to remove the cause and to renew performance as soon as practicable thereafter. However, in the event that the Force Majeure persists for more than one month either party may cancel the relevant Contract with no liability to the other.
12.1 You may not assign any Contract in whole or in part without our prior written consent.
12.2 We may perform any Contract or part of a Contract ourselves or assign or sub-contract to any other company.
12.3 Each Contract sets out the entire agreement and understanding between us relating to the subject matter thereof and supersedes all prior discussions between us and all prior memoranda of intent or understanding and all previous documentation in relation to such subject matter. Any variation must be signed in writing by one of our properly authorised representatives.
13.1 Any waiver by either of us for any breach of, or default under, any of these Conditions shall not be effective unless confirmed by the waiving party in writing and shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other Conditions.
13.2 Each right and remedy hereunder is without prejudice to any other right or remedy which may be available pursuant to these Conditions or otherwise.
13.3 Each provision of these Conditions is distinct and severable from the others and if at any time one or more of such provisions is or becomes invalid, unlawful or unenforceable (whether wholly or to any extent), the validity, lawfulness and enforceability of the remaining provisions (or the same provision to any other extent) shall not in any way be affected or impaired.
13.4 The parties do not intend that any Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not party to it.
Any Contract between us shall be governed by and construed in accordance with English law and we both agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising in respect thereof.
15.1 Any notice to be given under this agreement shall be in writing and shall be deemed duly given if left at or sent by first class recorded delivery, by e-mail or by fax, if it is sent by us to your last known address, e-mail address or fax number or if it is sent by you.
15.2 Any notice sent by e-mail or fax shall be deemed to have been delivered on the day of its delivery or transmission or if such day is not a working day on the next following working day thereafter unless a notification of non-delivery is received. Any notice sent by recorded delivery shall be deemed to have been received seven (7) working days after despatch and in proving the fact of despatch it shall be sufficient to show that the envelope containing such notice was properly addressed stamped and posted.