1. The following definitions shall apply :-
(a) “Business Day” shall mean a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
(b) “Buyer” shall mean the person whose order for the Goods is accepted by the Company;
(c) “Goods” shall mean the Goods (including any instalment of goods or parts for them) which the Company is to supply in accordance with the Conditions;
(d) “Company” shall mean Procare UK Limited, a company incorporated in England and Wales with company number 04527914, whose registered office address is Unit 6, Lodge Causeway Trading Estate, Lodge Causeway, Fishponds, Bristol, BS16 3JB;
(e) “Contract” shall mean a contract between the parties for the sale and purchase of the Goods;
(f) “Conditions” shall mean the standard terms and conditions set out in this document and includes any special terms and conditions agreed in writing between the Buyer and the Company;
2. These Conditions shall apply to the Contract to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document, or which are implied by trade, custom, practice or course of dealing.
3. An order for Goods shall be deemed to be an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer shall ensure that the terms of any order and any relevant specifications submitted by the Buyer are complete and accurate.
4. An order shall only be deemed to be accepted when the Company issues a written acceptance of an order, at which point the Contract shall come into existence.
5. Any addition to or variation of these conditions shall be ineffective unless in writing signed on behalf of the Company by an authorised officer.
6. The Contract may not be cancelled or varied except by agreement with the Company and on such terms as to increased price or otherwise as the Company may stipulate.
7. A quotation or tender for the Goods given by the Company shall not constitute an offer. Every quotation or tender is open for acceptance within 30 days from its date and is subject to confirmation by the Company upon receipt of acceptance.
8. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
9. To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Supplier 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 [reasonable] professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of that specification. This clause 9 shall survive termination of the Contract.
PRICE & PAYMENT
10. Prices given in quotations and tenders are those subsisting at the date of the quotation or tender and the Company reserves the right to amend quoted prices at any time before delivery to meet any increased costs of the Company that are due to:
(a) any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or their specification; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
11. Prices quoted by the Company for Goods include the cost of delivery, packaging and insurance to the Buyer unless otherwise stated by the Company.
12. The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
13. The Company may invoice the Buyer for the Goods on or at any time after the completion of delivery.
14. The Buyer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Company. Time of payment is of the essence.
15. If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
16. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
17. Unless expressly incorporated in the Contract and save as otherwise required by law;
(a) No statement specification illustration or other particulars in regard to any of the Company’s products contained in any catalogue price lists or other published matter or quotation or tender form part of the Contract;
(b) The Company makes no representation or warranty in respect of performance figures or suitability or fitness of Goods for any particular application or purpose or further manufacture;
(c) The Company makes no representation or warranty or guarantee that the Goods will be of the same quality as a sample submitted although every effort will be made to comply with such quality.
18. Delivery of the Goods shall be completed on the Goods’ arrival at the location set out in the order for Goods. Any despatch date or time quoted in the order for the delivery of the Goods is provisional only and the Company shall not be liable for failure to despatch the Goods on such date or within such time.
19. The Company cannot guarantee exact quantities or gauge in respect of the Goods and shall be deemed to have fulfilled their obligations under the Contract by delivery or manufacture of the quantity and the gauge specified in the order plus or minus 10%. The Buyer shall pay at the quoted rate for the actual quantity delivered.
20. The Company reserves the right to deliver and invoice part shipments of Goods against any order unless specific instructions to the contrary have been given in writing to the Company.
21. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
22. The risk in the Goods shall pass to the Buyer;
(a) In the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or
(b) In the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
23. The property in the Goods shall not be deemed to pass until the Company has received payment in full therefore. Until the Buyer has paid for the Goods in full he shall store or mark the goods in such a manner that they can be clearly identified as the property of the Company. (If the Goods shall be processed or mixed with or converted to any other goods then the goods thereby produced shall be the property of the Company until payment in full is made). The Buyer may sell the Goods or any other goods produced partly or in whole there from in the normal course of its business but shall hold and pursue claims for the proceeds of sale thereof until the Company shall have been paid in full.
24. If the Company reasonably believes the Buyer to be insolvent it may suspend deliveries until evidence is produced to the contrary or fresh terms of payment are agreed.
25. Liability for Goods damaged in transit will only be accepted by the Company where damage is reported in writing to the carrier and the Company within three days from the date of delivery or in the case of non-delivery within seven days from the date of the invoice for the goods.
26. If the Buyer fails to take delivery of the Goods or any part thereof within 5 Business Days of the Company notifying the Buyer that the Goods are ready for delivery, the Goods shall be stored by the Company at the Buyer’s expense and at the Buyer’s risk and without prejudice to any other rights of the Company under the Contract or otherwise.
27. If 14 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
28. The Company may by notice in writing summarily terminate the Contract if the Buyer becomes bankrupt or makes any composition or arrangement with its creditors or becomes subject to an administration order or being a company goes into liquidation or has a receiver appointed of its assets or undertaking or any part thereof or suffers a similar or equivalent event or proceeding in any jurisdiction.
29. Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(l), or the Supplier 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 this Contract on the due date for payment.
30. On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
31. Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination
COMPANY LIABILITY FOR GOODS
Note: The legal rights of customers purchasing as consumers where the Goods prove defective are laid down by general law and nothing in these conditions shall affect such rights.
32. Nothing in these Conditions shall limit or exclude the Supplier’s 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; or
(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
33. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a reason beyond its reasonable control or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
34. The Company shall not be liable for any defect in the Goods except to the original purchaser and only when it is established to the reasonable satisfaction of the Company that the Goods where defective at the date of despatch and the defect is notified to the Company within fourteen days from the date of despatch after which the period the Buyer will be deemed to have accepted the Goods as being in good condition and free from any defect.
35. The Company’s liability in respect of the Goods under any conditions warranties or other terms expressed or implied or otherwise shall be subject to the following:
(a) The Company shall not be liable for the fitness of the Goods for their purpose or the Goods to comply with the manufacturer’s specification unless in either case a warranty is given in writing by the Company.
(b) The Company shall replace any of the Goods which are shown to the Company’s reasonable satisfaction to be defective within three calendar months of delivery provided that the Company is given notice in writing as soon as reasonably practicable of any defect being discovered and it shall not be liable for the cost of removing or reworking such goods.
(c) The Company’s liability shall in any event be limited to the Contract price and shall not in any circumstances except in respect of death of personal injury caused by the Company’s negligence extend to consequential loss or damage howsoever arising.
(d) The Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract
36. 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.
37. Neither the Company nor the Buyer shall be responsible for any delay loss damage or expense caused by matters beyond their reasonable control including but not limited to Acts of God, foreign hostilities, war, government action, strikes, lockouts, fire or accident.
38. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
39. If any provision or part-provision of the Contract 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 Contract.
40. A waiver of any right or remedy under the Contract 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 Contract 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.
41. A person who is not a party to the Contract shall not have any rights to enforce its terms.
42. This contract shall in all respects be governed and construed in accordance with English Law and the Buyer hereby submits to the determination of all disputes hereunder by the Courts of England.