DEFINITIONS
1 The definitions and rules of interpretation in this condition apply in these conditions.
Account: agreed credit or discount terms with the Company.
Buyer: the person, firm or company who purchases Goods from the Company.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods formed in accordance with condition 2.6, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods (including any instalment/part of them) agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them) in accordance with these conditions.
Loss: any claim, damage, demand, expense, fee, fine, payment, proceeding, liability, loss or penalty.
Company: the Company Tiacare Ltd
Quotation: a quotation from the Company for the supply of Goods or Services, whether in writing (by email, fax or letter), or orally to the buyer.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract. These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods, Hired
2.3
Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a Quotation for Goods or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods or Services or hire Hired Goods as the case may be subject to these conditions. Orders must refer to codes and descriptions of the relevant Goods or Hired Goods.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods or Services to the Buyer.
2.6 A legally binding contract is formed between the Buyer and the Company on the date on which the Buyer receives the Company’s written acknowledgement of its order for Goods, Hired Goods or Services, or (if earlier) on the date on which the Company delivers the Goods, Hired Goods or Services ordered by the Buyer.
2.7 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.8 Any Quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer or (if earlier) delivers the Goods or Services to the Buyer. Any Quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3. DESCRIPTION
3.1 The quantity and description of the Goods or Services to be supplied under the Contract shall be as set out in the Quotation or the Company’s acknowledgement of order, which must include the relevant Goods codes.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s literature are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 Goods are sold by reference to description and not product codes. Product codes relating to Goods are listed solely for identification purposes and no guarantees/warranties by suppliers/manufacturers of Goods may be inferred from such codes.
3.4 The Company shall, upon written request of the Buyer, provide the Services to the Buyer on such terms as set out herein.
4. DELIVERY
4.1 Orders for Goods by the Buyer to destinations within the UK with a value in excess of £50.00 (excluding VAT) may not, at the Company’s discretion, carry delivery charges. However, the Company reserves the right to pass on to the Buyer any packaging, carriage or other charges including charges for the supply of Goods to special order.
4.2 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business.
4.3 Any dates specified by the Company for delivery of the Goods or Hired Goods are intended to be an estimate and time for delivery may not be made of the essence by notice. The Goods or Hired Goods may be delivered by the Company in advance of the quoted delivery date on giving the Buyer reasonable notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or Hired Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 120 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods or until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.7 If the Company delivers to the Buyer Goods which are the nearest available alternative to those ordered, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the difference provided that the Company does not have Goods of the exact specification ordered in stock.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to reject or cancel any other Contract or instalment.
4.10 It shall be the responsibility of the Buyer to check the Goods on delivery and notify the Company in writing within 24 hours of the time of delivery if it considers that the Goods or any part of them have been damaged prior to or in transit.
(a) the Company, after examination of such Goods, deems them to have been damaged on or prior to delivery to the Buyer;
(b) the Company shall be under no liability and neither this condition nor condition 4.10 applies in respect of any damage arising from the negligence of the
Buyer or the failure by the Buyer to follow any instructions of the Company (whether oral or in writing) in relation to the handling/storage of the Goods.
4.12 The provisions of condition 9.4 shall apply in relation to any replacement Goods supplied in accordance with condition 4.11.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be
conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods or Hired Goods should in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro-rata Contract rate against any invoice raised for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property and if necessary label them as such;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and in addition when it is due to pay for the Goods.
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.9 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.10 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or
perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
(6.11 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.12 The Buyer grants the Company, its agents and 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 the Buyer’s right to possession has terminated, to recover them.
6.13 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.14 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Sellers price list published on the date of delivery or deemed delivery.
7.2 The Company reserves the right by giving written notice to the Buyer at any time before delivery to increase the price of the Goods,to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as without limitation any foreign exchange fluctuation, currency, regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the Goods 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 information or instructions.
7.3 The price for the Goods,shall be exclusive of any value added tax. Certain products or equipment (in respect of which details may be requested from the Company) may be zero rated. All costs or charges in relation to packaging, loading, unloading, carriage and insurance, the Buyer shall pay
8. PAYMENT
8.1 The Company’s invoices shall be raised and dated on the date of dispatch of the Goods from the Company’s (or its agent’s) warehouse.
8.2 Subject to condition 8.6, payment of the price for the Goods, is due in pounds sterling within 30 days of the date stipulated on the Company’s invoice, and the Company shall be entitled to recover the price notwithstanding that delivery may not have taken place and the property in the Goods may not have passed to the Buyer.
8.3 No Goods will be dispatched until paid for in full if the Buyer does not have an Account with the Company.
8.4 Time for payment shall be of the essence.
8.5 No payment shall be deemed to have been received until the Company has received cleared funds.
8.6 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.7 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.8 If the Buyer fails to pay the Company any sum due pursuant to the Contract, then without any prejudice to any other right or remedy available to the Seller:
the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the monthly rate of 2% above the base lending rate from time to time of Lloyds Bank, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
9. QUALITY
9.1 All warranties given by the Company are limited to those made in writing by the original manufacturer of the Goods. The Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee relating to the Goods which has been given to the Company.
9.2 The Company or any of its representatives do not warrant that on delivery Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; or
(b) be reasonably fit for purpose.
9.3 If within 12 months from the date of delivery of the Goods, the Company deems the Goods to be faulty, the Company shall at its option repair or replace such goods (or the defective part) or refund the price of such goods at the pro-rata Contract rate provided that:
(a) the Buyer shall return the goods (or the part of such goods which is defective) and packaging to the Company;
(b) the Company, after examination of such goods/parts, deems them faulty;
(c) the Buyer, within 3 days of the date of delivery/deemed delivery requests in writing to return the goods to the Company;
(d) the Company agrees to the request as set out in condition 9.3(c) above;
(e) the Buyer bears all expenses, costs and charges relating to carriage (including packaging) incurred in returning the goods to the Company and incurred by the Company sending the goods back to the Buyer;
(f) non-stock items made by special order may not under any circumstances be returned to the Company; or
(g) the Company shall be under no liability and this condition does not apply in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing) misuse or alteration or repair of the goods without the Company’s approval.
9.4 Any Goods replaced shall belong to the Company and any repaired or replacement goods shall be guaranteed on these terms as set out in condition 9.1.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods;
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract; and
(d) provision of the Services.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act (1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation; or
(e) under section 6(1), Unfair Contract Terms Act 1977.
10.4 Subject to condition 10.2 and condition 10.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price or the amount payable under any insurance policy held by the Company in respect of any losses for which the Company is liable under the Contract whichever is greater; and
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11. ASSIGNMENT
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13. GENERAL
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
14. COMMUNICATIONS
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
(a) (in case of communications to the Company) to its principal place of business, (as detailed on the Quotation) or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
14.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.