1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following definitions apply:
Agreed Volume: the agreed volume of Goods to be delivered to the Customer as per the commercial invoice;
Business Day: means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
Conditions: means the Supplier’s terms and conditions of sale set out in this document;
Confidential Information: means any commercial, financial or technical information, information relating to the Goods, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Supplier in performing its obligations under, or otherwise pursuant to the Contract;
Contract: means this agreement between the Supplier and the Customer for the sale and purchase of the Goods incorporating these Conditions and the Supply Agreement;
Contract Start Date: means the start date set out in the Supply Agreement;
Customer: means the named party in the Contract which has agreed to purchase the Goods from the Supplier and whose details are set out in the Supply Agreement;
Documentation: means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Goods;
Force Majeure: means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
Goods: means the goods and related Documentation to be supplied by the Supplier to the Customer in accordance with the Contract;
Location: means the address(es) within the United Kingdom set out in the Supply Agreement as being the agreed location(s) for delivery;
Price: means the price of the Goods set out in the Supply Agreement;
Supplier: means Bluetree Medical Ltd., a company incorporated in England and Wales with company number 03793442 and with its registered address at Unit 1 Brookfields Park, Manvers Way, Manvers, Rotherham, S Yorkshire, S63 5DR; and
Term: means the period of time from the Contract Start Date specified in the Supply Agreement until the end of the duration specified in the Supply Agreement.
2. CONTRACT AND OF THESE CONDITIONS
2.1 The Contract will commence on the date of invoice, unless terminated earlier in accordance with conditions 9 or 10, will terminate at the end of the Term.
2.2 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply or contained in the Customer’s purchase conditions.
2.3 No variation of these Conditions or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.
2.4 If there is any conflict between the Supply Agreement and these Conditions, the terms of the Supply Agreement shall be deemed to apply.
2.5 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
3. PRICE & PAYMENT
3.1 The Customer will be required to pay the deposit (If applicable) on or before the Contract Start Date as specified in the Supply Agreement.
3.2 Monthly payments (If applicable) will be payable in accordance with the terms of the Supply Agreement. The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
3.3 Where sums due under these Conditions are not paid in full by the due date the Supplier may, without limiting its other rights, charge interest on such sums at 4% a year above the Bank of England base rate from time to time in force and interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4. PRODUCTION & DELIVERY
4.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the date(s) agreed. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only. Time for delivery shall not be of the essence.
4.2 Subject to conditions 4.3 and 4.4, any complaint of short delivery or damaged Goods in transit must be notified within 24 hours of receipt of Goods and confirmed in writing at that time by the Customer to the Supplier, and any complaint of failure to deliver Goods invoiced must be so notified within 10 days of the date of the invoice.
4.3 The Supplier’s ability to produce and supply the Goods is conditional upon its ability procure the necessary raw materials. The Supplier will notify the Customer as soon as possible if it will be unable to supply an amount equal to the Agreed Volume in any calendar month.
4.4 If the Supplier notifies the Customer that it is unable to deliver the Agreed Volume in any calendar month, it will, at the Customer’s sole option (and to the exclusion of any other remedy available to the Customer):
4.4.1 refund or credit the Customer for the proportion of the Agreed Volume that it was not able to deliver; or
4.4.2 increase the volume of Goods delivered in subsequent calendar month(s) during the Term to make up the shortfall.
For the avoidance of doubt the provisions of this condition 4.4 shall represent the Customer’s sole remedies if the Supplier is unable to deliver the Agreed Volume in any calendar month.
4.5 The Supplier shall not be liable for any delay in or failure of performance caused by:
- 4.5.1 the Customer’s failure to make the Location available;
- 4.5.2 the Customer’s failure to prepare the Location in accordance with the Supplier’s instructions; or
- 4.5.3 Force Majeure.
- 4.6 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
5. RISK & TITLE
5.1 Risk in the Goods shall pass to the Customer on delivery.
5.2 Title to the Goods shall pass to the Customer once the invoice is generated Goods supplied by the Supplier to the Customer under this Supply Agreement.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
- 5.3.1 hold the Goods as bailee for the Supplier;
- 5.3.2 store the Goods separately from all other material in the Customer’s possession;
- 5.3.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
- 5.3.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier’s interest on the policy;
- 5.3.5 ensure that the Goods are clearly identifiable as belonging to the Supplier;
- 5.3.6 not remove or alter any mark on or packaging of the Goods;
- 5.3.7 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in condition 10.2; and
- 5.3.8 on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
6.1 The Supplier warrants that the Goods shall:
- 6.1.1 conform in all material respects to their description;
- 6.1.2 be free from material defects in design, material and workmanship; and
- 6.1.3 be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
- 6.2 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, replace or refund the Goods that do not comply with condition 6.1, provided that the Customer:
- 6.2.1 serves a written notice on Supplier not later than 24 hours from delivery in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery in the case of latent defects;
- 6.2.2 such notice specifies that some or all of the Goods do not comply with condition 6.1 and identifying in sufficient detail the nature and extent of the defects; and
- 6.2.3 gives the Supplier a reasonable opportunity to examine the claim of the defective Goods.
- 6.3 The provisions of these Conditions shall apply to any Goods that are replaced, with effect from delivery.
- 6.4 The Supplier shall not be liable for any failure of the Goods to comply with condition 6.1:
- 6.4.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
- 6.4.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
- 6.4.3 to the extent caused by the Supplier following any specification, instruction or requirement of or given by the Customer in relation to the Goods;
- 6.4.4 where the Customer modifies any Goods without the Supplier’s prior consent or, having received such consent, not in accordance with the Supplier’s instructions; or
- 6.4.5 where the Customer uses any of the Goods after notifying the Supplier that they do not comply with condition 6.1.
6.5 Except as set out in this condition 6:
- 6.5.1 the Supplier gives no warranty and makes no representations in relation to the Goods; and
- 6.5.2 shall have no liability for their failure to comply with the warranty in condition 6.1,
and all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
7. LIMITATION OF LIABILITY
7.1 Subject to condition 7.4, the Supplier’s total liability under or in connection with any claim under the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall not exceed the price paid or payable by the Customer for the Goods in relation to which the claim arises.
7.2 Subject to condition 7.4, the Supplier shall not be liable for consequential, indirect or special losses.
7.3 Subject to condition 7.4, the Supplier shall not be liable for any of the following (whether direct or indirect):
- 7.3.1 loss of profit;
- 7.3.2 loss or corruption of data;
- 7.3.3 loss of use;
- 7.3.4 loss of production;
- 7.3.5 loss of contract;
- 7.3.6 loss of opportunity;
- 7.3.7 loss of savings, discount or rebate (whether actual or anticipated); or
- 7.3.8 harm to reputation or loss of goodwill.
- 7.4 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
- 7.4.1 death or personal injury caused by negligence;
- 7.4.2 fraud or fraudulent misrepresentation; or
- 7.4.3 any other losses which cannot be excluded or limited by applicable laws.
8. DATA PROTECTION
9. FORCE MAJEURE
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so.
10.1 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if:
- 10.1.1 the Customer commits a material breach of the Contract (If applicable ) and such breach is not remediable, or if capable of remedy, is not remedied within 14 days of receiving written notice of such breach; or
- 10.1.2 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue.
- 10.1.3 and in each such case the Supplier shall, without prejudice to any other right or remedy available to it, be entitled to deduct from the Customer’s deposit: (i) any unpaid amount due from the Customer to the Supplier as at the date of termination; and (ii) any interest chargeable on any such unpaid amount under condition 3.3; and (iii) any costs incurred by the Supplier in dealing with such non-payment including without limitation an administrative credit control charge of £25.”
10.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so, is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case, becomes the subject of a company voluntary arrangement under the Insolvency Act 1986, has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income, has a resolution passed for its winding up; has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced; has a freezing order made against it; is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items; or is subject to any events or circumstances analogous to the foregoing in any jurisdiction.
10.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
11.1 The Customer shall keep confidential all Confidential Information of the Supplier and shall only use the same as required to perform the Contract. The provisions of this condition shall not apply to:
- 11.1.1 any information which was in the public domain at the date of the Contract;
- 11.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
- 11.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier; or
- 11.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
11.2 This condition shall remain in force until such time as the Confidential Information is no longer confidential.
12.1 Entire agreement: The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
12.2 Assignment: The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent.
12.3 Set off: The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
12.4 Severance: If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
12.5 Waiver: No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
12.6 Third party rights: A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
13. GOVERNING LAW
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non- contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).