Term & Conditions

DEFINITIONS AND INTERPRETATION
1. In these terms and conditions the following words and expressions shall have the following meanings:
  
  “Company” shall mean SURGICHEM LIMITED (company registration number 01959342) of Unit 7 Castlehill, Horsfield Way, Bredbury Park Industrial Estate, Bredbury, Stockport SK6 2SU (and whose registered office is at Bridge House, Outwood Lane, Horsforth, Leeds LS18 4UP).
  
  “Contract” shall mean any contract between the Company and the Purchaser for the sale and purchase of Goods incorporating these terms and conditions.
  
  “Goods” shall mean any goods equipment parts or services to be supplied by the Company to the Purchaser (including any part or parts of any such items).
  
  “Purchaser” shall mean a party who purchases Goods from the Company.
  
  “Quotation” shall mean a written quotation given by the Company in respect of the supply or proposed supply of Goods by the Company to the Purchaser and any such quotation issued by the Company shall (unless otherwise stated in the quotation or agreed in writing with the Company) be valid for a period of [ ] from the date shown on the quotation or if no date is shown from the date of receipt of such quotation by the Purchaser.
2. A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
3. Words in the singular include the plural and in the plural include the singular.
4. A reference to one gender includes a reference to the other gender.
5. Condition headings shall not affect the interpretation of any of these conditions.
PRICES AND GOODS
1. Notwithstanding any price specified in any Quotation or in any order placed by a Purchaser the price of the Goods shall (subject to clause 2.2 below) be the prevailing price at the date of acceptance of any order by the Company.
2. In relation to clause 2.1 above if the price prevailing at the date of acceptance of an order by the Company has changed from that shown in the relevant Quotation (assuming a valid Quotation exists) then the Company shall notify the Purchaser of such change in writing following such order acceptance and if the Purchaser does not cancel the order within three working days thereafter the prices specified in such notification shall apply.
3. Any price for the Goods shown shall (unless otherwise stated) be exclusive of any Value Added Tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance all of which amounts the Purchaser shall pay in addition to the price when it is due to pay for the Goods.
4. Any query by the Purchaser in relation to any invoice rendered by the Company must be made within thirty days of the date shown on the invoice failing which the parties agree that such invoice shall be deemed to be accepted and any query by the Purchaser waived.
5. The quantity and description of the Goods shall be as set out in the Company’s Quotation or acknowledgement of acceptance of any order.
6. All samples drawings descriptive matter specifications and advertising materials issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and they shall not form part of the Contract and this is not a sale by sample.
TERMS OF PAYMENT
1. Subject to condition 3.4 below payment of the price for the Goods is (unless otherwise agreed between the Company and the Purchaser) due in pounds sterling 30 days from the end of the month when the invoice in respect of such Goods is issued by the Company.
2. Time for payment shall be of the essence.
3. No payment shall be deemed to have been received by the Company until the Company has received cleared funds for the relevant amount.
4. All payments due to the Company under the Contract shall become due immediately on its termination notwithstanding any other provision.
5. The Purchaser shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Purchaser.
6. If the Purchaser fails to pay the Company any sum due pursuant to the Contract by the date when such sum becomes due the Purchaser shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of Barclays Bank plc accruing on a daily basis until payment is made whether before or after any judgement.
TITLE AND RISK
1. The Goods are at the risk of the Purchaser from the time of delivery.
2. Ownership of the Goods shall not pass to the Purchaser until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
  1. the Goods; and
  2. all other sums which are or which become due to the Company from the Purchaser on any account.
3. Until ownership of the Goods has passed to the Purchaser the Purchaser shall:
  1. hold the Goods on a fiduciary basis as the Company’s bailee;
  2. store the Goods (at no cost to the Company) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as the Company’s property;
  3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
  4. maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full value against all risks and to the reasonable satisfaction of the Company and on request the Purchaser shall produce the policy of insurance and evidence of payment of the relevant premium to the Company.
4. The Purchaser may resell the Goods before ownership has passed to it solely on the following conditions:
  1. any sale shall be effected in the ordinary course of the Purchaser’s business and shall be at full market value; and
  2. any such sale shall be a sale of the Company’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale.
5. The Purchaser’s right to possession of the Goods shall terminate immediately if:
  1. The Purchaser has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a receiver and/or manager administrator or administrative receiver appointed in respect of its undertaking or any part thereof or documents are filed with the court for the appointment of an administrator of the Purchaser or notice of intention to appoint an administrator is given by the Purchaser or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) or a resolution is passed or a petition presented to any court for the winding-up of the Purchaser or for the granting of an administration order in respect of the Purchaser or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser;
    or
  2. the Purchaser suffers or allows any distress or execution whether legal or equitable to be levied on his/its property or obtained against him/it or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Purchaser or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Purchaser ceases to trade;
    or
  3. the Purchaser encumbers or in any way charges any of the Goods.
6. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7. The Purchaser grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Purchaser’s right to possession has terminated to recover them.
8. Where the Company is unable to determine whether any Goods are the goods in respect of the Purchaser’s right to possession has terminated the Purchaser shall be deemed to have sold all goods of the kind sold by the Company to the Purchaser in the order in which they were invoiced to the Purchaser.
9. On termination of the Contract howsoever caused the Company’s (but not the Purchaser’s) rights contained in this condition 4 shall remain in effect.
DELIVERY
1. Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the Company’s place of business.
2. The Purchaser shall take delivery of the Goods within [10] days of the Company giving notice that the Goods are ready for delivery.
3. Any dates specified by the Company for the delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified delivery shall be within a reasonable time.
4. Subject to the other provisions contained in these conditions the Company shall not be liable for any direct indirect or consequential loss (all three of which terms include without limitation pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) costs damages charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence) nor shall any delay entitle the Purchaser to rescind or terminate the Contract unless such delay exceeds [30] days.
5. The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Purchaser unless the Purchaser can provide conclusive evidence to the contrary.
6. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Purchaser gives written notice to the Company of the non-delivery within [30] days of the date when the Goods would in the ordinary course of events have been received.
7. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
QUALITY
1. The Company warrants that (subject to the other provisions of this condition 6) on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
2. The Company shall not be liable for a breach of the warranty in condition 6.1 above unless:
  1. the Purchaser 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 10 days of the time when the Purchaser discovers or ought to have discovered the defect; and
  2. the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Purchaser (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
3. The Company shall not be liable for a breach of the warranty in condition 6.1 if:
  1. the Purchaser makes any further use of such Goods after giving the notice referred to in condition 6.2 above; or
  2. the defect arises because the Purchaser 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; or
  3. the Purchaser alters or repairs such Goods without the written consent of the Company.
4. Subject to condition 6.2 and 6.3 above if any of the Goods do not conform with the warranty in condition 6.1 above 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 Purchaser shall at the Company’s expense return the Goods or the part of such Goods which is defective to the Company.
5. If the Company complies with condition 6.4 it shall have no further liability for a breach of the warranty in condition 6.1 in respect of such Goods.
APPLICATION OF TERMS
1. Subject to any variation under condition 7.3 below the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).
2. No terms or conditions endorsed on delivered with or contained in the Purchaser’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
3. These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by [Mark Chadwick] of the Company.
4. The Purchaser acknowledges that it has not relied on any statement promise or representation made or given by or on behalf of the Company which is not set out in the Contract provided that nothing in this condition shall exclude or limit the Company’s liability for fraud or fraudulent misrepresentation.
5. Each order or acceptance of a Quotation for Goods by the Purchaser from the Company shall be deemed to be an offer by the Purchaser to buy Goods subject to these conditions.
6. No order placed by the Purchaser shall be deemed to be accepted by the Company until a written acknowledgement of that order is issued by the Company or (if earlier) the Company delivers the Goods to the Purchaser.
7. The Purchaser shall ensure that the terms of its order and any applicable specification are complete and accurate.
RESALE
1. The Purchaser undertakes not to resell Goods purchased from the Company knowing that the purchaser or any subsequent purchaser intends to export the Goods for delivery to countries which are not members of the European Union.
RETURN
1. No goods may be returned to the Company after delivery without the prior written consent of the Company.
2. If the Company consents to the return of any Goods the Purchaser must provide an advice note stating the reason for the return and the date and number of the Company’s invoice for the Goods.
3. All Goods returned in accordance with conditions 9.1 and 9.2 above must be securely packed and carriage for any such returns must be paid by the Purchaser.
SOFTWARE
1. All software included in Goods or supplied by the Company is supplied on the following basis:
  1. The disc, tape or other storage medium containing the software and the instruction manual or the hard copy of such manual is sold to the Purchaser; and
  2. the software programme and any other property over which intellectual property rights are held by the Company or third parties which are included in or on the disc, tape or other storage medium, instruction manual or other hard copy item included with the software are licenced to the end-user in accordance with the terms of the licence accompanying the software and the Purchaser acknowledges that the software is sold subject to licence and will only use the software subject to such licence.
LIMITATION OF LIABILITY
1. Subject to the conditions above the following provisions set out the entire financial liability of the Company (including any liability for the acts and omissions of its employees agents and sub-contractors) to the Purchaser in respect of:
  1. any breach of these conditions; and
  2. any use made or resale by the Purchaser of the Goods or of any product incorporating any of the Goods; and
  3. any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and save for any such warranties, conditions and other terms expressly preserved elsewhere in these conditions) are, to the fullest extent permitted by law excluded from the Contract.
3. Nothing in these conditions excludes or limits the liability of the Company:
  1. for death or personal injury caused by the Company’s negligence; or
  2. under section 2(3) of the Consumer Protection Act 1987; or
  3. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
  4. for fraud or fraudulent misrepresentation.
4. Subject to condition 11.2 and 11.3 above:
  1. the Company’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
FORCE MAJEURE
1. The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of Goods ordered by the Purchaser (without liability to the Purchaser) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including without limitation acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-out, strikes or other labour disputes (whether or not relating to the either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided That if the event in question continues for a continuous period in excess of [60] days, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract.
GENERAL
1. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
2. If any provision of the Contract is found by any court, tribunal or 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.
3. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
4. Any waiver by the Company of any breach of or any default under any provision of the Contract by the Purchaser 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.
5. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
6. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
COMMUNICATIONS
1. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
  1. in the case of communications to the Company to its offices at Unit 7 Castlehill, Horsfield Way, Bredbury Park Industrial Estate, Bredbury, Stockport SK6 2SU or to such other address as shall be notified to the Purchaser by the Company in writing; or
  2. in the case of the Purchaser to its registered office address (if it is a company) or (if it is not a company) to any address of the Purchaser set out in any document which forms part of the Contract or in either case to such other address as shall by notified in writing to the Company by the Purchaser.
2. Communications shall be deemed to have been received:
  1. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
  2. if delivered by hand on the day of delivery; of
  3. if sent by fax on a working day prior to 4.00pm at the time of transmission (as evidenced by a copy of the relevant transmission sheet) and otherwise on the next working day.

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