1.1 In these Conditions:
‘ACCEPTANCE’ means acceptance by the Seller of the Customer’s Order in accordance with clause 3. ‘CUSTOMER’ means the person, firm or company whose Order is accepted by the Seller. ‘CONDITIONS’ means these standard terms and conditions of sale. ‘CONTRACT’ means the contract for the purchase and sale of the Goods between the Customer and the Seller. ‘DELIVERY’ means the delivery of Goods by the Seller to the Customer in accordance with these Conditions and the word ‘Delivered’ shall be construed accordingly. ‘DELIVERY DATE’ means the date and time specified in the Order and agreed by the Seller. ‘DELIVERY LOCATION’ means the address specified in the ‘ORDER’ and if no address is specified shall mean the Seller’s premises at Shepherds Grove West, Stanton, Suffolk IP31 2AR. ‘FORCE MAJEURE’ means any circumstances beyond the party’s reasonable control including but not limited to fire, explosion, adverse weather conditions, import or export regulations, civil commotion, strikes, lock-outs, other industrial actions or trade disputes (whether involving the party’s employees or those of a third party), court order or injunction, government intervention (including refusal or revocation of any licence or consent) or the default of suppliers of sub-contractors (where such delay is beyond the reasonable control of such supplier or sub-contractor. ‘GOODS’ means the goods specified in the Order including any consignment thereof which the Seller is to supply in accordance with these Conditions. ‘INVOICE’ means the Seller’s invoice for the purchase and sale of Goods. ‘INVOICE DATE’ means the date of the invoice. ‘ORDER’ means the order for the purchase and sale of the Goods containing the Specification and placed by the Customer with the Seller made in accordance with the clause 3 hereof. ‘PRICE’ means the price of the Goods stated in the order. ‘SELLER’ means Clinimax Limited whose registered office is at Shepherds Grove West, Stanton, Bury St Edmunds, Suffolk, IP31 2AR (Company no. 5509121). ‘SPECIFICATION’ means the quantity, quality and description of and any other specification relating the Goods set out in the Order. ‘TOTAL’ means the Price and any other sums due to the Seller under clause 4.2 and 4.3.
2. Basis of sale
2.1 The Seller shall sell and Customer shall purchase the Goods in accordance with any Order subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall binding unless agreed in writing by the properly authorised representatives of the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations advice or recommendations concerning the Goods, and the Customer shall not be entitled to rely on any such representations.
2.4 Any Price quoted by the Seller prior to Acceptance shall not be an offer by the Seller but shall be deemed to be an invitation to treat.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and specifications
3.1 Orders may be made in writing or by facsimile or electronic mail to the Seller on the Seller’s standard order form or by phone to a member of the Seller’s sales team but no Order shall be deemed to have been accepted by the Seller unless and until it has been confirmed in writing by the Seller’ authorised representative.
3.2 The Customer shall ensure that the Order is accurate and that all the information reasonably required by the Seller relating to it is provided to the Seller in sufficient time to enable the Seller to perform the Contract in accordance with the Conditions.
3.3 The Seller reserves the right to make any changes to the Specification which is required to conform to any applicable statutory or regulatory requirements which do not materially affect their quality of performance.
3.4 No Order which has been accepted by the Seller may be cancelled by the Customer except with the agreement in writing of the Seller and on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4.1 The Seller reserves the right, by giving notice to the Customer at any time before Delivery, to increase the Price to reflect any increase in cost to the Seller due to any factor beyond the Seller’s control or any change in Delivery Dates or the Specification requested by the Customer or any delay caused by instructions of the customer or failure of the Customer to give the Seller adequate information or instruction [provided that if such increase is greater than 10% of the Price, the Customer shall be entitled to terminate the Contract by written notice to the Seller received within 14 days of notification of the increase].
4.2 The Price is exclusive of any value added tax applicable from time to time or any other duties or charges whatsoever (including, without limitation, any export or import duties, or packaging or delivery charges under clause 4.3) for which the Customer shall be additionally liable.
4.3 Where the Delivery Location is otherwise than at the Seller’s premises, the Customer shall be liable to pay the Seller’s reasonable charges for transport, packaging and insurance together with the Price, unless the Customer and the Seller have agreed otherwise.
5. Terms of payment
5.1 The Seller shall be entitled to invoice the Buyer for the Price on or at any time after Delivery, unless Delivery is at the Seller’s premises or the Buyer wrongfully fails to take Delivery, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered Delivery.
5.2 The customer shall pay the Total (without any deduction counterclaim or set off for any reason) within 28 days of the Invoice Date.
5.3 If the Customer fails to pay to the Seller the Total by the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel any contracts with the Customer or suspend any further deliveries to the Customer under this or any other contract; and
5.3.2 charge the Customer interest on the amount unpaid accruing daily at the rate of 2% per cent above the base rate of Barclays Bank plc from time to time until payment in full is made, which shall accrue at such a rate after as well as before any judgement.
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to and the Customer collecting the Goods from the Delivery Location, which shall be agreed between the Buyer and the Seller.
6.2 The Delivery Date is approximate only and the Seller shall not be liable for any delay in the Delivery howsoever caused. The time of Delivery shall not be of the essence of the Contract. The Seller may deliver the Goods in advance of the Delivery Date upon giving reasonable notice to the Customer.
6.3 A the Seller’s discretion the Goods may be delivered by consignments and where the Goods are delivered by consignment each delivery shall constitute a separate contract so that failure by the Seller to deliver any one or more of the consignments in accordance with these Conditions or any claim by the Customer in respect of any one or more consignment shall not entitle the Customer to treat the contract as whole as repudiated.
6.4 If the Seller fails to make the Delivery for any reason within the Seller’s reasonable control of the Customer’s fault, then any resulting liability which the Seller may owe to the Customer shall be limited to the excess (if any) of the cost to the Customer of (in the cheapest available market) similar goods to replace those not delivered over the price of the Goods.
6.5 If the Customer fails to take the Delivery or fails to give the Seller adequate instructions relating to the delivery (provided that the fault is not that of the Seller) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 where practicable store the Goods until their delivery and charge the Customer for the reasonable costs (including insurance) or storage and any additional transportation costs; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the Price.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Customer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the customer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, the beneficial title and property in the Goods shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the Total and all other Goods agreed to be sold by the Seller to the Customer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the customer and third parties and properly stored, protected and insured and identified as the Seller’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the title in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Customer to deliver up the Goods to the Seller and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer of any third party where the Goods are stored and repossess the Goods immediately.
7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Customer does so all moneys owing by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable
8. Warranties and liability
8.1 The seller warrants that the Goods will be of the described technical specification will correspond with the Specification at the time of Delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the application and use of the Goods is the absolute responsibility of the Customer. The Seller shall be under no liability in respect of any defect in the Goods arising from or caused by any fault of the customer (including, without limitation: as a result of the poor or defective instruction from the Customer or failure by the Customer to follow the Seller’s instructions in relation to the Goods, or as a result of misuse, alteration or repair of the Goods without the Seller’s approval);
8.2.2 the Seller shall be under no liability in respect for any defect arising from any wilful damage, negligence of the Customer in relation to the Goods or any abnormal conditions imposed upon them by the Customer following delivery.
8.2.3 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the Total has not been paid by the due date for payment.
8.3 Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law and the Seller shall not be liable to the Customer for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) whether arising out of or in connection with the supply of Goods or their use or resale by the Customer.
8.4 Notwithstanding clause 8.3, the entire liability of the Seller under or in connection with any Contract shall not exceed the Price.
8.5 Any claim by the Customer which is based on any defect in the quality or condition of the Goods, their failure to correspond with the Specification or any defect caused by their packaging or the Delivery shall be notified to the Seller within 7 days after Delivery has been tendered by the Seller, or (where the defect or failure was not apparent on reasonable inspection) within 7 days of the discovery of the defect or failure.
8.6 If the Customer does not notify the Seller in accordance with the clause 8.5, the Customer shall not be entitled to reject the Goods and the Seller shall have no liability for any such defect or failure, and the Customer shall be bound to pay the Total as if the Goods had been delivered in accordance with the Contract
8.7 Where any valid claim in respect of any Goods is notified to the Seller in accordance with these Conditions, the Seller (at the Seller’s sole discretion) shall be entitled to replace such Goods free of charge or to collect them and issue to the Customer a credit note in respect of them and the Seller shall have no further liability to the Customer.
8.8 The Seller shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Sellers obligations in relation to the Goods, if the delay or failure is due to Force Majeure.
8.9 The customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
8.10 The Customer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement resulting from the Seller’s use of any specification or instructions provided by the Customer of any patent, application for patent, copyright, registered or unregistered design, trade mark, trade name, technical data, know how, trade secret or any other intellectual property rights whatsoever, whosesoever in the world enforceable.
8.11 Nothing in this agreement shall operate to exclude the Seller’s liability for death or personal injury arising as a result of the Seller’s negligence.
9. Insolvency of Customer
9.1 Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel any contract with the Customer or suspend any further deliveries to the Customer without and liability to the Customer and if any Goods have been delivered but not paid for the Total shall become immediately due and payable if:
9.1.1 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer, or
9.1.3 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer.
10.1 Any notice required or permitted to be given under the Conditions shall be in writing and served on either of the parties by the other and shall be sent by prepaid recorded delivery or registered post to the registered office or principle place of business of the relevant party or by facsimile or by electronic mail. Such notices shall be deemed to have been received by the addressee within 48 hours of posting or 24 hours if sent by facsimile or by electronic mail to the correct facsimile number or correct electronic mail address or the addressee notified to the other party for that purpose.
10.2 The Customer shall forthwith provide the Seller with such of an address in England, a working facsimile number or electronic mail address as the Seller shall require for the service of the Customer of documents and notices under the Conditions.
10.3 No waiver by the Seller of any breach of the Contract or of the Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Conditions and the remainder of the provision in question shall not be affected.
10.5 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person who is not a party to this Contract (other than a successor in the title to one of the original parties) shall be entitled in that person’s own right to enforce any provisions of the said Act.
10.6 This Contract may not be assigned in whole or in part, but is binding upon and shall ensure for the benefit of the parties personal representatives and other successors.
10.7 These Conditions (together with any documents referred to herein) contain the entire Contract and understanding of the parties and supersede all prior agreements, understanding or arrangements (both oral and written) relating to the subject matter of this Contract.
10.8 Each of the parties acknowledges and agrees that it does not enter into the contract and the documents referred to herein on the basis of, and does not rely, and has not relied upon any statement or representation (whether negligent or innocent) or warranty or other provisions (in any case whether oral, written, express or implied) made, given or agreed to by any person (whether party to this Contract or not) except those expressly set out of referred to in this Contract and the documents referred to herein and the only remedy or remedies available in respect of any misrepresentation of untrue statement made to it shall be a claim for breach of contract under the Contract but for avoidance of doubt clauses 10.7 and 10.8 shall not apply to any statement, representation or warranty made fraudulently or to any provision of this Agreement which was induced by, or otherwise entered into as a result of, fraud, for which the remedies shall be those available under the law governing this Agreement.
8.9 Any dispute of difference arising out of or in connection with this Contract shall be determined in accordance with the Chartered Institute of Arbitrators Rules (2000 edition) by a single arbitrator to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an arbitrator, to be appointed by the President or a Vice President of the Chartered Institute of Arbitrators.
10.10 The Contract and the Conditions shall be governed by and construed in accordance with the laws of England, and the Seller hereby submits to exclusive jurisdiction of the English courts.