Terms and Conditions of Sale
In these terms and conditions:
1.1 “The Supplier” means Apex Medical Limited, its divisions and any other marketing or trading names in use.
1.2 “The Customer” means any person, firm, Supplier or other legal entity which places an order, or buys any Goods from the Supplier and includes the employees, servants, agents, principals (whether disclosed or undisclosed) or sub-contractors of any such person, firm, Supplier or other legal entity.
1.3 “Contract” means a contract between the Supplier and the Customer for the sale and purchase of the Goods.
1.4 “Goods” means Medical Equipment agreed in the Contract to be supplied by the Supplier to the Customer.
1.5 “Statutory Interest” means statutory interest as defined in the Late Payment of Commercial Debts (Interest) Act 1998 as amended & supplemented by the Late Payment of Commercial Debts Regulations 2002.
1.6 “Terms and Conditions” means these terms and conditions of sale.
1.6 “Late Payment Compensation Fee” please refer to para 7.4.
2. APPLICABILITY OF TERMS AND CONDITIONS
These Terms and Conditions shall be incorporated into the Contract and shall apply in place of and prevail over any terms and conditions contained or referred to in any communication from the Customer or implied by custom or practice. Other purported terms and conditions are expressly rejected by the Supplier.
3. ORDERS AND CONTRACTS
By placing an order with the Supplier either via the Supplier’s telesales department or the Supplier’s website the Customer is offering to contract with the Supplier on the basis of these Terms and Conditions. The Contract shall be formed when the Supplier acknowledges acceptance of the Customer’s order or delivers the Goods to the Customer whichever occurs earlier. The Contract is subject to availability of stock. Neither the Supplier’s price list nor any prices which appear on the Supplier’s website constitute an offer and the Supplier may amend its published prices at any time prior to formation of the Contract in accordance with this Condition. Any current price list replaces all previous price lists. Prices are quoted exclusive of VAT which shall be charged if applicable.
4. VARIATIONS AND DISCOUNTS
4.1 Unless otherwise agreed in writing the Supplier reserves the right to make such amendments to the Contract as it thinks fit or to terminate the Contract should any information or data supplied by the Customer to the Supplier prove to be incomplete or inaccurate in any respect.
4.2 The Supplier reserves the right to vary or alter the specification of Goods without notice unless otherwise agreed in writing with the Customer.
4.3 The Supplier reserves the right by notice given at any time before delivery to vary the price of the Goods if, after the date of the Contract, there is an increase in the Suppliers total cost of raw materials or production arising from any cause beyond the Suppliers control.
4.3 Any discount which may be agreed between the Customer and the Supplier will only be binding on the Supplier if such an agreement is evidenced in writing and these Terms and Conditions are strictly complied with.
4.4 Any forbearance by the Supplier in continuing to allow discounts in the event of breach by the Customer of any of these Terms and Conditions shall not be deemed to be a waiver of the Supplier’s rights and the Supplier shall be entitled to claim the undiscounted price of all Goods supplied under the Contract.
5.1 Title in the Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Supplier from the Customer on any account.
5.2 Until title passes to the Customer, the Customer shall hold the Goods on a fiduciary basis as the Supplier’s bailee; store the Goods separately from all other Goods in such a way that they are clearly identifiable as the property of the Supplier; maintain the Goods in a satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier.
5.3 In the event of non-payment on the due date for whatever reason of any sums due from the Customer to the Supplier, or in the event that any of the forms of insolvency detailed in Condition 11 commences against the Customer, the Supplier, its agents and employees shall have the right, without giving notice and without incurring liability, to enter into the Customer’s premises and to take possession of the Goods to which title has not passed. This right shall be without prejudice to any other legal rights or remedies available to the Supplier.
Notwithstanding the provisions in section 5, the Goods shall be at the risk of the Customer from the time they are tendered for delivery, at an agreed destination or are available for collection by the Buyer or cease to be in the possession of the Supplier. In particular when they are delivered into the possession or custody of a carrier, forwarding agent, warehouseman or other bailee or agent, for the purpose of transmission, whether or not such person contacts with or is instructed by the Supplier or the Buyer.
7. SETTLEMENT TERMS
7.1 Where credit is granted, unless otherwise agreed in writing all sums payable in respect of Goods must be paid without deductions within 30 days from the date of the invoice.
7.2 Failure to pay by the due date shall entitle the Supplier to suspend delivery of all unexecuted orders. The time for payment of the price of the Goods shall be of the essence.
7.3 The Supplier reserves the right at any time in its absolute discretion to demand immediate payment of any account whether due or not and to take legal action to recover the debt and costs.
7.4 If payment is not made in accordance with this Condition, the Supplier reserves the right to charge Statutory Interest on the overdue balances for the period from the date on which payment became due until the date on which payment is made including any period after the date of any judgement or decree against the Customer. In addition each overdue invoice will attract a late payment compensation fee of £40.
7.5 In the event of any cheques, standing orders or direct debits due from a Customer to the Supplier being dishonoured, a charge of £45 (or such other sum as the Supplier may from time to time advise the Customer) will be made on the Customer’s account to cover bank and administrative costs.
7.6 The Supplier reserves the right in its absolute discretion to refuse to grant credit.
8. DELIVERY AND DELAY
8.1 The Supplier shall have deemed to have delivered the Goods wither when the Goods are dispatched from the Suppliers premises or, as the case my be, when the Goods are ready for collection at the Suppliers premises.
8.2 Deliveries of Goods to the Customer shall be in accordance with the Supplier’s delivery schedule. The Supplier shall not be liable for any loss or damage whatsoever arising as a result of failure to deliver Goods by a particular date or arising as a result of any cause beyond the Supplier’s control. Time for delivery shall not be of the essence unless otherwise agreed by the Supplier in writing.
8.3 The Supplier is entitled to deliver the Goods by instalments and to invoice the Customer for each such instalment. Each instalment shall be considered a separate transaction and the failure of one delivery shall not effect the due performance of the contract as a whole.
8.4 The Supplier will endeavour to deliver the correct quantity of goods ordered, but quotations are dependent upon stocks being available and the Supplier shall not be liable for short delivery.
8.5 Should expediated delivery be agreed and necessitate overtime or additional costs, such costs and overtime shall be paid for by the Customer.
8.6 Delivery of Goods shall be made by the Supplier to such reasonably accessible premises as the Customer shall reasonably require. The Customer shall allow the Supplier reasonable access to such premises and shall use best endeavours to ensure that a responsible person shall be at the place of delivery to take delivery of the Goods and to sign for them. In the event of no such person being present at the time of delivery the Supplier will not leave the Goods at the premises.
8.7 If the Customer fails to take delivery or fails to give the Supplier adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Supplier, the Supplier may do one or more of the following:
8.7.1 charge the Customer the cost of carriage of the failed delivery both to and from the premises of the Customer in addition to the Supplier’s administration charges involved;
8.7.2 charge the Customer the full cost price of the Goods and a sum in respect of its loss of profit provided that the Supplier shall use its reasonable endeavours to mitigate such loss;
8.7.3 store the Goods until actual delivery and charge the Customer for the reasonable cost (including insurance) of storage;
8.7.4 sell the Goods at the best price readily obtainable and charge the Customer for any shortfall below the price under the Contract.
9. ACCEPTANCE AND CLAIMS PROCEDURE
9.1 The Customer must check that the quantity and specifications of Goods delivered correspond with the Contract before signature of the delivery note. An unqualified signature shall be deemed to signify the Customers acceptance that the goods are in good condition.
The Supplier will not be responsible for damage to any Goods or part thereof in transit unless the Customer gives notice of a claim to the Supplier and to the carrier:
9.1.1 in case of damage, within 14 days after having received the Goods, and
9.1.2 in case of loss, within 14 days of the date of the invoice.
The Customer must retain damaged Goods for inspection and collection.
9.2 The Suppliers liability in the case of loss or damage in transit shall be limited to repairing or replacing the damaged or, as the case may be, the lost goods and the Supplier shall not be under any other liability thereunder whatsoever
10. CANCELLATION OF CONTRACT
The Contract may not be cancelled by the Customer without the written consent of the Supplier. The Supplier reserves the right upon consent being given to levy a cancellation charge of not less than 20% of the standard list price of the Goods which are the subject of the Contract to cover the Supplier’s losses arising from the cancellation. Non-stock Goods ordered on behalf of the Customer cannot be returned, unless the manufacturer agrees to accept them.
11. INSOLVENCY OF CUSTOMER
In the event that:
11.1 the Customer makes any voluntary arrangement with its creditors, proposes to enter into a Supplier voluntary arrangement, enters into administration, is unable to pay its debts as they fall due, makes application to a Court to suspend enforcement action against it, goes into liquidation (in the event that the Customer is a Supplier) or becomes insolvent, enters into a trust deed or voluntary arrangement for the benefit of its creditors (in the event that the Customer is an individual or firm), or if the equivalent occurs under any jurisdiction; or
11.2 an encumbrancer takes possession of, or a receiver or administrative receiver is appointed over, any of the property or assets of the Customer; or
11.3 the Customer suspends any payments hereunder or ceases, or threatens to cease, to carry on business; or
11.4 the Supplier reasonably considers that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly; then without prejudice to any other rights or remedies available to the Supplier, the Supplier shall be entitled forthwith to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for, the price shall become immediately payable notwithstanding any previous agreement to the contrary.
12.1 The condition and warranties implied by the Sale of Goods Act 1979 shall apply. To the extent permitted by law all other conditions warranties or obligations whether express as implied by statute, Common Law or otherwise is excluded and the remaining provisions of this condition shall apply in lieu of thereof. The Supplier shall not be liable for any indirect or consequential loss whatever and however arising.
13. LIMITATION OF THE SUPPLIER’S LIABILITY
13.1 The Supplier limits its liability to the maximum extent permitted by law as follows:
13.2 If any of the Goods shall be found to be defective and such defects are reported by the Customer in writing to the Supplier: in the case of apparent defects within 14 days of delivery and in the case of latent defects within 14 days of the date of which those defects could reasonably first have been identified, the Supplier may at its option, either repair or replace any part of the Goods or make an equivalent quantity of the goods available to the Customer free of charge ex-works or repay a corresponding proportion of the price to the Customer but shall not be under any other liability.
13.3 The Supplier shall be under no liability in respect of alleged defective Goods unless
13.3.1 The Customer gives to the Supplier written notice and details of the defect within the periods mentioned above;
13.3.2 The Customer gives to the Suppliers representative adequate opportunity to inspect the goods and remove samples for analysis;
13.3.3 The Goods have not been cut out, hung or subjected to any other process or the Customer has not used or dealt with the goods properly.
13.4 All descriptions, depictions and other particulars supplied by the Supplier in catalogues, price lists or other documents issued by the Supplier or statements made by word of mouth are given for general information purposes only and the Customer acknowledges that it is not entereing into the contract in reliance thereupon.
13.5 Where the Goods are produced by the Supplier in accordance with the Customer’s specification or drawings, the Customer shall indemnify the Supplier against all costs, claims, damages and expenses to which the Supplier may become liable as a result of infringement or the alleged infringement of any patent, registered design or any other intellectual property right.
13.6 Under no circumstances, except with the Suppliers consent, shall the Customer withhold payment of the amount due to the Supplier because of a disputed claim of any nature nor shall the Customer be entitled to claim a right of set-off, claim or counter claim in respect of any of the Suppliers obligations arising in respect of matters other than this contract.
13.7 The Supplier’s liability in respect of death or personal injury caused by the Supplier’s negligence shall not be limited.
13.8 The Supplier shall have no liability for any loss or damage suffered by the Customer or any other person:
13.8.1 as a consequence of any defect in any Goods caused by abnormal conditions of storage, treatment or handling or any negligence or wrongful act on the part of the Customer or its employees or agents;
13.8.2 for claims for damage reasonably apparent on inspection at the time of delivery or for short delivery unless the provisions of Condition 9 (Acceptance and Claims Procedure) have been complied with;
13.8.3 for any loss of profit, loss of sale, loss of goodwill, loss of reputation; loss of customers and any other similar losses caused by the Supplier’s negligence or other wrongful act on the Supplier’s part or that of its employees or agents;
13.8.4 for any failure by the Supplier to perform any of its obligations in these Terms and Conditions caused by circumstances beyond its reasonable control.
14. INTELLECTUAL PROPERTY
Copyright and all other intellectual property rights in the Goods shown in the Supplier’s lists shall remain at all times the property of the Supplier. The Customer shall acquire no rights in the Goods except as expressly provided for in these Terms and Conditions.
You may not reproduce, copy, duplicate, transmit, publish, display, distribute or sell any material from the Supplier websites. You may not use the Supplier websites or their content for any commercial purpose; including the collection and use of any listings, descriptions, prices, make any derivative or commercially exploitative use of this website or its content, download or copy account information, use any data mining, robots or similar data gathering and extraction tool without the explicit written consent of the Supplier. Any unauthorised use terminates any permission’s granted.
15. FORCE MAJEURE
The Supplier reserves the right to defer the date of delivery or reduce the volume of Goods ordered by the Customer or to cancel the Contract without liability to the Customer if it is prevented from or delayed in the carrying out of its obligations under the Contract due to circumstances beyond its reasonable control including without limitation any failure or delay on the part of the manufacturer of any of the Goods to supply the Goods to the Supplier, any strike, lock-out or other industrial action, fire, explosion, flood, closure of motorways or other roads leaving no alternative route, unusually severe weather conditions or unusually severe traffic congestion which could not reasonably have been anticipated leaving no alternative route, loss of power or telecommunications systems or computer failure or breakdown.
16. ADDITIONAL TERMS
16.1 Failure or delay on the part of the Supplier in enforcing any provision of the Contract shall not be construed as a waiver of any of the Supplier’s rights under the Contract. Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.2 If any provision of the Contract is found by any Court, tribunal or other 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.
16.3 The Supplier, but not the Customer, may assign its rights and obligations under the Contract.
16.4 Any written communication given pursuant to the Contract must be sent by pre-paid first class post to the registered office of the addressee or such other address as may have been notified in writing and shall be deemed to have been received by the addressee two business days after the date of posting.
16.5 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16.6 The Contract shall be governed by the laws of England and the Supplier and the Customer agree to submit to the non-exclusive jurisdiction of the English Courts.
16.7 If the Customer is a partnership the liability of the individual partners to the Supplier shall be joint and several.
16.8 The signature on behalf of a Customer who is a limited Supplier by any person purporting to sign with the Customer’s authority shall bind the Customer and the Customer shall be liable to comply with the terms of the Contract.
16.9 The Customer shall be liable to comply with the terms of the Contract and pay for any Goods which are ordered using its Customer account number.
16.10 The Supplier reserves the right to amend these Terms and Conditions from time to time on giving not less than 14 days prior notice to the Customer.