In these conditions of sale (“Conditions”):
the "Company" means Advanced Therapeutic Materials Limited.
the "Buyer" means the person to whom the Company's quotation or acknowledgement of order is addressed.
"Goods" means the goods specified in the Company's acknowledgement of order, including, but not limited to Compression garments and suspension sleeves.
(a) These Conditions shall be incorporated into each contract ("Contract") for the supply of Goods by the Company. The Company does business and concludes Contracts for the supply of goods subject only to these Conditions and on the basis that the Buyer is buying the goods exclusively for the purposes of a business. The Buyer accepts that these Conditions shall govern relations between itself and the Company to the exclusion (to the extent permitted by law) of any other common law or statutory terms, conditions, warranties and representations, written or oral, expressed or implied, even if contained in any of the Buyer's own documents which purports to provide that the Buyer's own conditions shall prevail.
(b) No variation or qualification of these Conditions or of any quotations or contract shall be valid unless agreed to in writing and signed by the Company's duly authorised representative.
(c) Any description contained in the Company's catalogues, samples, price lists or other advertising material is intended merely to present a general picture of the Company's goods and shall not form a representation or be part of the Contract.
(a) Quotations may be accepted in writing within 30 days of the date of a quotation provided that:
(i) the Company shall be under no obligation to the Buyer to perform a Contract until such acceptance has been acknowledged by the Company in writing on its acknowledgement of order form; and
(ii) the Company reserves the right to vary the terms of a quotation at any time before an order is accepted by the Buyer.
(b) Any errors or omissions on the Company's acknowledgement of order form shall be notified in writing to the Company by the Buyer within 10 days of the date of such acknowledgement otherwise the acknowledgement will be deemed to be correct in all respects.
(c) No Contract may be cancelled, suspended or varied by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses suffered or incurred by the Company as a result of a cancellation, suspension or variation.
(a) Goods will be invoiced at the Company's prices ruling on the day of despatch. Unless otherwise agreed in writing by the Company and the Buyer, all prices are given on an ex-works basis, and where the Company agrees to deliver the Goods otherwise than at the Company's premises, the Buyer shall be liable to pay the Company's charges for transport, packaging [and insurance] and other incidental costs. Prices do not include VAT and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods, (whether initially charged on or payable by the Supplier or the Buyer) which will be chargeable at the date of invoicing.
(b) Where payment is to be made in currency other than sterling, the Company shall be entitled to adjust its prices or charges before invoicing the Buyer if the rate of exchange at the time of quoting is different from the rate of exchange ruling at the date of the invoice and such entitlement to vary prices following currency exchange rate fluctuations shall continue while any money remains due and owing to the Company.
(c) The Company reserves the right, by giving 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, 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. Where the price for the Goods is varied in accordance with this clause, the price as varied shall be binding on both parties.
5. PACKING, DESPATCH AND DELIVERY
(a) Unless otherwise agreed between the Company and the Buyer in writing:
(i) A standard carriage and handling charge will be made on all orders in the U.K. in accordance with the scale of charges published by the Company from time to time and dependant on order value.
(ii) All overseas orders will be packed, stored and despatched in accordance with the terms of the Contract.
(iii) Packaging for the Goods shall be at the discretion of the Company which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Buyer and agreed in writing by the Company prior to agreeing a price for the Goods.
(b) Should the Buyer require any goods to be packed, stored, despatched or dealt with otherwise than as aforesaid, the Company shall be entitled to increase the Contract price to reflect the cost of the Buyer's requirements and the Buyer must give written notice to the Company at the time of such request if the Buyer wishes the Company to effect insurance to cover any loss or damage arising out of such storage, despatch or dealing in order that the Company may effect its own insurance and the cost thereof shall be added to the Contract price and if no such notice is given then the Buyer shall not be entitled to raise any claim arising out of any such loss or damage.
(c) Delivery shall take place when the Goods are unloaded at or delivered to the Buyer's premises or other delivery location agreed between the Company and the Buyer except that:
(i) if the Buyer collects or arranges collection of the Goods from the Company's premises, or nominates a carrier for the Goods, delivery shall take place when the Goods are loaded onto the collection or carrier's vehicle;
(ii) if the Goods are ready to be despatched from the premises of the Company to the Buyer and the Buyer has failed or refused to provide the Company with detailed delivery instructions and/or the place for delivery has not been agreed in writing by the Company then delivery shall take place when the Company has notified the Buyer that it is awaiting specific delivery instructions and/or that the place for delivery has not been agreed.
(d) The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Company may either:
(i) effect delivery by whatever means it thinks most appropriate; or
(ii) arrange storage at the Buyer's risk and expense pending delivery; or
(iii) resell or otherwise dispose of the Goods without prejudice to any other rights the Company may have against the Buyer for breach of contract or otherwise.
(e) Where the Contract provides for delivery by instalments each instalment shall constitute a separate contract and any delay, failure or defect in any one or more instalments delivered shall not entitle the Buyer to reject or cancel delivery or performance of any further instalment of the Contract or any other order from the Buyer or to repudiate the Contract.
(f) The quantity of the Goods delivered under the Contract shall be recorded by the Company upon despatch from the Company's premises and the Company's record shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
6. SPECIFICATIONS, NON STANDARD ORDERS, ALTERATIONS
(a) If Goods are supplied in accordance with the Buyer's specifications ("Specifications") the Buyer shall be solely responsible for the Specifications and ensuring that they are suitable and accurate.
(b) The Company reserves the right to make any changes in the Specifications of the Goods which are required to conform with any applicable statutory or CE requirements.
(c) The Buyer shall be responsible for supplying the Specifications and any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
(d) The Company shall, prior to delivery, be entitled at its discretion to substitute for the Goods forming the subject of the order similar goods from the same or an alternative source, or to make modifications or alterations to the Goods provided that:
(i) in the case of substituted Goods, the alternative goods supplied shall be of equivalent or better quality or performance to the substituted Goods;
(ii) the case of modified and altered Goods, such modifications or alterations to the Goods shall not materially affect their quality or performance.
(a) Subject to any special terms agreed in writing between the Company and the Buyer, liability for payment shall arise on delivery. The Company shall be entitled accordingly to invoice the Buyer for the price of the Goods on or at any time after delivery, unless these are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Buyer for the price at any time after the Company has notified the Buyer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
(b) When deliveries are spread over a period each consignment will be invoiced as despatched and each month's invoices will be treated as a separate account and be payable accordingly.
(c) Payment shall be made on or before the 30th day following date of Invoice without any deduction or set off or deferment on account of disputes or cross claims whatsoever.
(d) Time for payment shall be of the essence and in the event of a Buyer's account being more than 30 days in arrear the Company shall be entitled to cancel the Contract or suspend any further deliveries or performance under the Contract or any other contract so long as the default continues.
(e) The Company shall have the right upon giving written notice to the Buyer to suspend deliveries under this and any other agreement even if the Buyer is not in arrear with any payment if the amount outstanding in the Buyer's accounts whether actually due for payment or not exceeds the limit of credit that the Company believes is reasonable for the Buyer to have and the Company shall not be liable for any loss or damage suffered by the Buyer as a result of such suspension.
The Company will use its reasonable endeavours to despatch Goods in accordance with any times stated in the Contract but time shall not be of the essence of the Contract. Such times are an estimate only and in the event of delay in despatch, for any reason, whether within or beyond the Company's reasonable control, the same shall not be a breach or repudiation of the Contract and the Company shall not be liable for any loss or damage suffered by the Buyer as a result of such delay.
9. RESERVATION OF PROPERTY CLAUSE
Until full payment has been made of the price of the Goods and of any other sums whatsoever which are or may become outstanding from the Buyer to the Company, whether accrued due or not and whether under the Contract or howsoever otherwise arising and including debts and liabilities arising before and after the date of the Contract:
(a) The property in the Goods shall not pass to the Buyer and the Buyer shall keep the Goods as bailee for the Company returning the same to the Company upon request.
(b) The Buyer shall be at liberty to sell the Goods in the ordinary course of business as principal and not as agent for the Company notwithstanding the fact that title to the Goods has not been passed to the Buyer but the benefit of any such contract or sale and the proceeds of any such sale shall belong to the Company absolutely.
(c) The Buyer shall keep and safely store the Goods separately and in such manner that they can be readily identified as the property of the Company.
(d) In the event of the determination of repudiation of the Contract howsoever occurring the Company is hereby irrevocably authorised to enter on the premises of the Buyer and repossess the Goods and any other goods in the Buyer's possession the property of which is vested in the Company.
(e) The Buyer will keep the Goods free from and will indemnify the Company against any charge, lien or other encumbrance thereon.
(f) If the Buyer shall allow the Goods to become incorporated into or be used in the manufacture of other goods before the full price of the Goods is paid to the Company, the property in the whole of those new goods shall be that of the Company who shall be entitled to take possession of the new goods and the Company is hereby granted a licence to enter into the Buyer's premises for the purpose of recovering the new goods. The Company shall be entitled to sell the new goods and shall retain from the proceeds of sale thereof a sum equal to the amount outstanding to them in respect of the price of the Goods and shall pay the balance of the sale proceeds to the Buyer.
10. EXAMINATION, CLAIMS, RETURN OF GOODS
(a) Subject to the provisions of Condition 9, the Buyer shall examine the Goods upon delivery or, in respect of the sale of Goods outside the United Kingdom, upon receipt and the Buyer shall:
(i) notify in writing the Company (and the carrier where relevant) within [three working days] of such delivery or receipt of any apparent damage, defect or shortage;
(ii) notify in writing the Company within [three working days] of such delivery or receipt of any goods despatched by the Supplier to the Buyer in error;
(iii) notify in writing the Company (and the carrier where relevant) within [24 hours] of the proposed date of delivery of non-delivery or short delivery.
(b) Notification under Condition 10(a) shall be first made by telephone then by notice in writing delivered by facsimile or by first class recorded delivery mail (if within the UK) or by courier (if outside the UK) and addressed to the Company at the Company's address [specified on the Company's acknowledgement of order] unless specified otherwise by the Company.
(c) The Buyer shall comply with the carrier's rules regulations and requirements so as, when appropriate, to enable the Company to make a claim against the carrier in respect of any damage or loss in transit.
(d) In default of notification pursuant to the provisions of this Condition 11, subject to any claim which the Buyer may have under Condition 12, the Company shall be deemed conclusively to have properly performed its obligations under the Contract.
(e) The Company shall be under no obligation to accept the return of Goods except in accordance with Conditions 11(a)(i), 11(a)(ii), 12 and 14.
11. QUALITY, CONDITION AND REPLACEMENT OF GOODS
(a) In respect of Goods supplied but not manufactured by the Company, the warranties given by the Company will be equivalent to the warranty (if any) which the Company received from the manufacturer or supplier of such Goods but not so as to impose a liability greater than that imposed on the Company by the warranty in Condition 12(b) and the warranties given pursuant to this Condition shall in any event apply only if the Buyer has given the Company written notice and satisfactory proof of any relevant defect within the applicable period specified in Condition 12(b).
(b) The Company warrants that (subject to the other provisions of these Conditions) for a period of [one] month from the date of delivery, the Goods will be free from defects in workmanship or material.
(c) The Company shall not be liable for a breach of the warranty in Condition 12(b) unless:
(i) The Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within seven days of the time when the Buyer discovers or ought to have discovered the defect and shows to the satisfaction of the Company that the Goods are defective in workmanship or materials;
(ii) The Company is given a reasonable opportunity after receiving notice of the defect to examine such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Buyer's cost for the examination to take place there.
(d) The Company shall not be liable for a breach of the warranty in Condition 12(b) if:
(i) the Buyer makes any further use of such Goods after giving such notice;
(ii) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(iii) the Buyer replaces, repairs or fits parts to the Goods which were not supplied by the Company, or without the written consent of the Company;
(iv) the Goods have been stored, handled or applied in such a way that damage is likely to occur;
(v) the defect in the Goods arises from any free issue materials or any drawing, design or specification supplied by the Buyer.
(e) Subject as expressly provided in Conditions 12(a), 12(b) and 12(c), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
(f) Subject to Conditions 12(c) and 12(d), if any of the Goods do not conform with the warranty in Condition 12(b), 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, if the Company so requests, the Buyer shall, return the Goods or the part of such Goods which are defective to the Company or make such Goods available for inspection by the Company.
(g) Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for a period of [four] months from the date of the completion of such repair or replacement.
(h) Save for liability for death or personal injury arising from the Company's negligence, for fraud and for liability arising under the Consumer Protection Act 1987 (which if proved is not excluded), the Company's obligations under Condition 12(f) as aforesaid shall constitute the full extent of the Company's liability in respect of any loss or damage sustained by the Buyer (whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by the negligence of the Company, its employees or agents or arising from any other cause whatsoever) and the Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct, indirect or consequential (including, without limitation, loss of profits, wastage of goods or labour, loss of contracts or goodwill) suffered by the Buyer arising therefrom.
(i) The cost to the Company of and incidental to the return by the Buyer to the Company of any of the Goods delivered hereunder shall, except to the extent that the Company has accepted responsibility hereunder, be the responsibility of the Buyer who shall indemnify the Company against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Company arising therefrom.
(j) Notwithstanding Condition 12(h) above, the Buyer shall, except where he is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, indemnify the Company against all loss, damage, liability, legal fees and costs arising from any such claim made against the Company under the Consumer Protection Act 1987.
(k) Save for liability for death or personal injury arising from the Company's negligence and for liability arising under the Consumer Protection Act 1987 (which if proved is not excluded), the maximum liability of the Company under or in connection with the Contract shall not exceed the price of the Goods.
The Buyer agrees upon demand to indemnify the Company against all losses, damages, injury, costs and expenses of whatever nature suffered by the Company to the extent that the same are caused by or related to:
(a) designs, drawings or specifications given to the Company by the Buyer in respect of the Goods;
(b) defective materials or products supplied by the Buyer to the Company and incorporated by the Company in the Goods;
(c) the improper incorporation, assembly, use, processing, storage or handling of Goods by the Buyer.
(a) The Company may at any time and in its absolute discretion request, either orally or in writing, the recall of any Goods supplied to the Buyer ("Recall"). Where such a request is made orally, it shall be confirmed by the Company in writing.
(b) The reasonable cost of collection of any Goods subject to Recall shall be borne by the Company and the Buyer shall render all reasonable assistance in the arrangements for collection and return of such Goods.
(c) If the Goods cannot be replaced within a reasonable period, the Company shall issue to the Buyer a credit note for the price then current of the Goods subject to Recall.
14. HOLDINGS GOODS
Any goods that the Company agrees to hold at the request of the Buyer subject to the order of the Buyer, shall only be so held for a maximum of three months and thereafter the Company shall be free to deal with such goods as it thinks fit, without any liability whatsoever to the Buyer. The Company reserves the right to charge a reasonable storage charge for such goods and to receive from the Buyer any loss or damage incurred by the Company as a result of the Buyer not making an order for all or any part of such goods within such 3 month period.
15. NEW CUSTOMERS
If requested by the Company the Buyer shall provide the Company with three business references and the Company shall not be liable to or incur any obligations towards the Buyer in respect of any goods or otherwise unless and until such references have been supplied to the satisfaction of the Company.
(a) The Company shall be entitled to sub-contract or assign all or any of its obligations hereunder. [Those Goods not manufactured at the Company's premises shall not be covered by the Company's quality assurance certificate scheme and shall be identified as such by an asterisk adjacent to the product description on the invoice.]
(b) None of the rights or obligations of the Buyer under the Contract may be assigned or transferred in whole or in part without the prior written consent of the Company.
If the Buyer enters into a deed of arrangement or commits an act of bankruptcy or compounds with its creditors or if a receiving order is made against it or (being a company) it passes a resolution or the Court makes an order that the Buyer shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver (including an administrative receiver) is appointed of any of the assets or undertaking of the Buyer or if the Buyer suffers the appointment or the presentation of a petition for the appointment of an administrator or if circumstances arise which entitle the Court or a creditor to appoint a receiver (including an administrative receiver) or a manager or which entitle the Court to make a winding-up order or if the Buyer takes or suffers any similar action in consequence of debt or if the financial position of the Buyer, in the opinion of the Company, becomes impaired or if the Buyer commits any breach of any part of the Contract the Company may without prejudice to its rights and remedies under these conditions stop all Goods in transit and suspend further deliveries and by notice to the Buyer may terminate the Contract immediately.
18. FORCE MAJEURE
(a) Insofar as the performance of the Contract by the Company may be affected by a strike, any lack of available shipping or transport or materials, any restriction, regulation or decree by any local or municipal authority or government department or by any cause beyond the Company's reasonable control (which shall be construed without reference to the preceding causes) the Company may elect, at its absolute discretion, either:
(i) to terminate the Contract; or
(ii) to proceed to perform or continue performance
under the Contract within a reasonable time after the termination of such events or circumstances.
(b) In the event that the Company makes an election under Condition 19(a) the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.
(a) Any notice or other communication to be given under these Conditions must be in writing and may be delivered or sent by registered post or facsimile transmission.
(b) Any notice or document shall be deemed served, if delivered, at the time of delivery; if posted, 48 hours after posting, and if sent by facsimile transmission, at the time of transmission.
The invalidity, illegality or unenforceability of any provision of these Conditions in whole or in part shall not prejudice the effectiveness of the rest of these Conditions or the remainder of any part of a Condition affected.
No waiver by the Supplier of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
22. THIRD PARTY RIGHTS
A person who is not party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
23. LAW AND INTERPRETATION
The Contract shall be governed by English Law.
No action or proceedings of any nature shall be started against the Company except in the English Courts, to the jurisdiction of which the Buyer also submits.