TERMS AND CONDITIONS OF SALE
1. BASIS OF CONTRACT
1.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
1.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
1.4 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 Products referred to in them. They shall not form part of the Contract nor have any contractual force.
1.5 A quotation for the Products given by the Supplier shall not constitute an offer. The Supplier reserves the right to amend prices quoted verbally
2. PRODUCTS AND PACKAGING SERVICES
2.1 The Products are described in the Supplier’s quotation.
2.2 The Supplier reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
2.3 If the Supplier has agreed to provide Packaging Services to the Customer, the parties shall enter into a Packaging Agreement and terms of the Packaging Agreement shall apply in addition to these Conditions. If there is any conflict between these Conditions and the provisions of the Packaging Agreement, the terms of the Packaging Agreement shall prevail and take precedence,
3.1 The Supplier shall ensure that each delivery of the Products is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable).
3.2 The Supplier shall deliver the Products to the location (or multiple locations, as applicable) set out in the quotation or such other location (or multiple locations, as applicable) as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Products are ready.
3.3 If the Supplier agrees to deliver the Products directly to the customer of the Customer (the “End User”):
(a) the Customer agrees to accept all risk in the Products from dispatch of the Products from the Supplier’s premises (including by insuring the Products in transit);
(b) the Supplier shall have no liability to the End User in any respect and the End User shall not have any rights under the Contract; and
(c) the Supplier may charge an additional fee for this service, which shall be communicated to the Customer prior to acceptance of the Customer’s Order.
3.4 Unless the parties have agreed that the Customer may collect the Products from the Supplier in which case delivery is completed on dispatch of the Products from the Supplier’s premises, delivery shall be completed on the Products’ arrival at the Delivery Location.
3.5 The Supplier shall use its reasonable endeavours to despatch the Products to a Delivery Location in the United Kingdom during normal business hours within 7 days of the date of the Order Confirmation unless otherwise specified or agreed in writing by the Supplier. Where the Supplier has agreed to deliver to a Delivery Location is outside the United Kingdom (including the Highlands and Islands) the Supplier shall use its reasonable endeavours to despatch the Products within 10 days of the date of the Order Confirmation, unless otherwise specified or agreed in writing by the Supplier. Notwithstanding the foregoing, any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery or failure to deliver the Products:
(a) that is caused by a Force Majeure Event;
(b) the Customer requesting a change to the original Order which is accepted by the Supplier, in which case the timescales for delivery shall begin to run from the date that the change to the Order is accepted by the Supplier;
(c) the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products;
(d) where it has notified the Customer of the delay or event causing the delay and the Customer decides to continue with the Order;
(e) where the Customer is late in making any payment due to the Supplier;
(f) where the Customer has placed an Order in excess of its credit limit;
(g) where the Customer has failed to meet any minimum order obligations agreed with the Supplier whether agreed pursuant to a Packaging Agreement or otherwise.
3.6 The Supplier accepts no liability for any damage to Products in transit unless notified to the Supplier and the carrier concerned in writing within 5 Business Days of delivery. In cases of nondelivery the Supplier accepts no liability of any sort unless written notice is given to the Supplier within 5 Business Days of receipt of the related invoice, which is sent under separate cover. The Supplier’s liability for damage or loss in transit notified to it in accordance with the above, shall in any event be limited solely to replacement of the Products by standard delivery within a reasonable time, whether non-delivery or damage is due to the Supplier’s negligence or otherwise. The Supplier will not be liable for alleged damage, lateness or non-delivery of Products to a third party or any other alleged consequential loss made at the request of the customer
3.7 If the Supplier fails to deliver the Products and is unable to replace them in accordance with clause 3.6, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products.
3.8 If the Customer fails to accept delivery of the Products within three Business Days of the Supplier notifying the Customer that the Products are ready or attempted delivery, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Products were ready; and
(b) the Supplier shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.9 If ten Business Days after the day on which the Supplier notified the Customer that the Products were ready for delivery or attempted to deliver the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
3.10 For the avoidance of doubt, without prejudicing any other rights that the Supplier may have, where the Supplier is providing the Packaging Services and the packaging of the Products is personalised or branded to the Customers’ design, the Supplier cannot resell the Products in accordance with clause 3.9 and shall be entitled to recover from the Customer the full price of the Products together with reasonable storage, insurance, delivery and other costs incurred by the Supplier as a result of the failure by the Customer to take delivery of the relevant Products.
3.11 The Supplier may deliver the Products by instalments and may make a partial delivery of an Order where all of the Products ordered are not available, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1 The Supplier warrants that on delivery the Products shall:
(a) conform in all material respects with their description; and
(b) be free from material defects in design, material and workmanship.
4.2 Subject to clauses 3.6 and 4.3, if:
(a) the Customer gives notice in writing to the Supplier within 30 days from delivery that some or all of the Products do not comply with the warranty set out in clause 4.1;
(b) the Supplier and/ or its appointed representatives are given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Customer’s cost,
if the Supplier or its appointed representative is satisfied that the Products are defective, the Supplier shall, at its option, replace the defective Products, or refund the price of the defective Products in full. For the avoidance of doubt, the Supplier shall not be required to refund the full price of an Order under which defective Products were supplied, its shall only be liable to refund the price of the defective Products themselves.
4.3 The Supplier shall not be liable for the Products’ failure to comply with the warranty set out in clause 4.1 in any of the following events:
(a) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
(b) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(d) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 4.1.
4.5 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.
4.6 These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
5. TITLE AND RISK
5.1 The risk in the Products shall pass to the Customer on dispatch of the Products from the Supplier’s premises for delivery to the Customer.
5.2 Title to the Products shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Products and any other Products that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; and
(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 5.5.
5.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products in a secure, safe, dry and clean environment separately from all other Products held by the Customer so that they remain readily identifiable as the Supplier’s property since it is not commercially viable to individually identify each item sold with a serial or other mark;
(b) do all such other acts and take all such reasonable measures to ensure that the Products remain easily identifiable as the property of the Supplier;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.1; and
(f) give the Supplier such information relating to the Products as the Supplier may require from time to time.
5.4 Where the Products of the Supplier are not kept separately, and in the case of a retention of title claim against a receiver or liquidator, the Supplier shall not be required to prove that an item of merchandise still evident is directly attributable to a particular unpaid sales invoice, but merely establish that, by virtue of F.I.F.O. Stock rotation, any Products in evidence of the type which is unpaid for, may be reasonably stated to be those Products which are unpaid for, and therefore the property of the Supplier.
5.5 Subject to clause 5.6, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
5.6 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 7.1, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell the Products or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them, or authorise a third party to do so.
6. PRICE AND PAYMENT
6.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
6.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any factor beyond the Supplier’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 Customer to change the Delivery Location, delivery date(s), quantities or types of Products ordered, payment terms, the Specification, or any other matters relevant to the supply of the Products by the Supplier;
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions;
(d) where the Customer is receiving the Packaging Services, any increases costs associated with the provision of such services beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, increases in plate and origination costs, increases in costs of preparing a template and increases in labour, materials and other manufacturing costs);
6.3 Subject to clause Error! Reference source not found., the price of the Products;
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) includes the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer.
6.4 Delivery costs and risk to Delivery Locations outside of the United Kingdom shall be on an EXW (Ex Works) Suppliers Premises Incoterms® 2010 (version), unless the parties have agreed otherwise in writing.
6.5 The Supplier may invoice the Customer for the Products on or at any time after acceptance of the Order.
6.6 Customers who do not have a credit account shall pay invoices in full providing cleared funds before despatch of the Products. The Supplier shall not be in breach of its obligations under these Conditions if it does not deliver the Products due to non-payment of the invoice (or any previous invoice) by the Customer).
6.7 The Supplier may, upon the provision of satisfactory trade, bank and personal references grant the Customer the facility of a credit account. In this case payment is due and shall (unless
otherwise agreed) be paid in full at the end of the month following the month of issue of the invoice. Time for payment is of the essence.
6.8 Any invoices becoming overdue will render the entire account payable immediately. The Customer agrees to indemnify the Supplier in full for all legal and other professional fees, bank or court fees and any other amounts reasonably incurred in obtaining full payment for Products or in employing another party to obtain such payment. The Supplier reserves the right to exchange, discuss and disseminate credit information about its Customers without their consent or knowledge.
6.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclay’s 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 Customer shall pay the interest together with the overdue amount.
6.10 The Customer 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 Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
7.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Products 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 7.1(a) to clause 7.1(d), 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.
7.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
7.4 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.
7.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
7.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
8. LIMITATION OF LIABILITY
8.1 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.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatsoever 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; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Products under the Order to which the claim relates.
9. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Contract by giving 10 days’ written notice to the affected party. This provision shall not apply to the Customer’s duty to make any payment to the Supplier under the Contract.
10.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
10.2 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
10.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.4 Waiver. 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.
10.5 Severance. 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.7 Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
10.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
10.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation, save for the enforcement against a Customer who has assets or who carries on business outside England and Wales in which case the Court having jurisdiction in the place of those assets or the carrying on of such business shall have jurisdiction for enforcement.
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 10.3.
“Contract” the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions and the terms of any Packaging Agreement (where applicable).
“Customer” the person or firm who purchases the Products from the Supplier.
“End User” has the meaning given in clause 3.3.
“Force Majeure Event”
an event or circumstance beyond a party’s reasonable control.
“Products” the Products (or any part of them) set out in the Order.
“Order” the Customer’s order for the Products, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
the agreement between the Supplier and the Customer governing the supply of the Packaging Services by the Supplier to the Customer.
the packaging services provided by the Supplier as more particularly detailed in any relevant Packaging Agreement.
“Supplier” Star Tissue UK (registered in England and Wales with company number (No. 05859797).
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or reenacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.