Terms and conditions of quotation and sale
The terms and conditions of quotation and sale can be seen below. All questions relating to these should be addressed to firstname.lastname@example.org.
1.1 In these terms (“Terms”):
“Applicable Guarantee Period” means subject to clause 7.4, the period from the date of delivery (as defined in clause 5) up until the product expiry date printed on the product packaging or provided with the Goods;
“Company” means Oxtex Limited, a company registered in England and Wales with registered number 07629095 and having its registered office at Witney Business and Innovation Centre, Windrush House, Burford Road, Witney, United Kingdom, OX29 7DX;
“Contract” means the agreement between the Purchaser and the Company for the supply of the Goods;
“Goods” means the goods listed in the OA or which the Company otherwise agrees to supply to the Purchaser (including any instalments or parts of the Goods);
“liability in relation to” means “liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with”;
“OA” means the order acknowledgement form (if any) issued by the Company to the Purchaser;
“Purchaser” means the purchaser of the Goods as stated in any applicable OA;
“Price”, subject to these Terms, means the price for the Goods as quoted and confirmed in any OA.
1.2 Any Contract provision invalid or unenforceable for any purpose shall be severed for that purpose but otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.
1.3 A payment shall be deemed made when credited to the payee's bank account and is cleared funds.
1.4 Save as otherwise agreed in writing by the Company the Contract shall comprise solely these Terms and any OA. Each OA together with these Terms shall be a separate Contract. Variations of the Contract shall be effective only if agreed in writing and will then prevail over these Terms.
1.5 English is the authentic text of the Contract and all notices or other communications under or relating to it shall be in writing in English. Any translation will be for guidance only.
2. QUOTATIONS, SPECIFICATION, VARIATION AND CANCELLATION
2.1 A quotation is not an offer and may be withdrawn or modified; save as otherwise agreed in writing by the Company no contract or commitment shall exist until the Company sends its OA to the Purchaser or until the Company commences work on or appropriates Goods to the Contract.
2.2 The Company may alter the specification of any Goods if this does not materially affect their performance or utility.
2.3 If any variation in the Goods or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation the Purchaser shall pay such additional amount as is fair and reasonable and the Company shall have reasonable additional time to perform the Contract.
3. PRICES AND PAYMENT
3.1 Subject to any OA, the Price shall exclude value added tax and any other applicable taxes and duties, packaging, carriage, insurance, documentation and installation charges which are payable in addition by the Purchaser. Unless costed for in any OA, the Company may make reasonable additional charges for complying with any special requirements of the Purchaser. Payment, subject to any OA, shall be made in Great British Pound Sterling clear of any banking transaction charges and without any deduction, set off or counterclaim whatsoever. Payment shall be made in accordance with the payment terms stated in any OA, or if none are stated, within 30 days of invoice.
3.2 Time of payment is of the essence of every Contract. Without limiting the Company's remedies if payment is overdue, the Purchaser shall indemnify the Company against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it a sum equal to any loss suffered by the Company arising from exchange rate fluctuations and interest on such sum and on amount overdue at the then current statutory rate, calculated from the date payment fell due until the date of actual payment and the Company may cancel the Contract and any other contracts and suspend deliveries to the Purchaser.
3.3 Any payment which would fall due later than it would have done but for delay caused by the Purchaser shall be deemed to fall due when, but for the Purchaser's delay, it might reasonably be expected to have fallen due. The Company may delay or withhold performance under the Contract until the Purchaser has made any payment or opened any letter of credit or established any other payment arrangements which are due to be made, opened or established and its time for performance shall be extended accordingly.
4. RISK AND PROPERTY
4.1 Until payment has been made of the whole of the Price and other monies payable by the Purchaser under the Contract and of all other monies owing by the Purchaser to the Company at the time the payment for the Goods falls due:
(a) property in any Goods shall remain the Company's; the Purchaser shall hold such Goods as the Company's fiduciary agent and bailee, stored separately from those belonging to any other person and labelled so as to show clearly that they are the property of the Company and properly protected, treated and insured;
(b) the Company may recover and/or resell the Goods, require their return to the Company and enter upon the Purchaser's or any carrier's premises by its servants or agents for that purpose and the Purchaser grants the Company an irrevocable licence to this effect which shall survive termination of the Contract;
(c) upon disposal by the Purchaser of the Goods it shall account to the Company for the proceeds and shall keep such proceeds separate from any other monies or property and (if tangible) properly stored and insured;
(d) the Company shall have a right of lien over any goods or materials belonging to the Purchaser which are in the Company's possession or control; and
(e) the Purchaser shall not pledge or charge by way of security for any indebtedness any of the Goods which remain the Company's property but if it does all monies owing by the Purchaser to the Company shall forthwith become due and payable.
4.2 Risk of damage to or loss of the Goods shall pass to the Purchaser at the earlier of the time when the Company notifies the Purchaser that the Goods are available for collection or upon the Company first despatching the Goods from its premises.
5.1 Save as otherwise agreed in writing by the Company delivery shall be made by the Company, following receipt of payment in full of the Company’s invoice for the Goods (unless alternative payment terms have been expressly agreed in the OA), making such Goods available for collection from its or its manufacturer’s premises and so informing the Purchaser ("Delivery"). If the Purchaser fails to take delivery or to give adequate delivery instructions, the Company may (without prejudice to its other rights) store or dispose of the Goods, in which case the Purchaser shall pay to the Company upon request the amount of any reasonable storage or disposal charges. Whilst the Company will seek to meet the stated delivery time, it is approximate and the Company shall not incur liability in relation to late delivery. If no time for delivery is agreed the Purchaser shall take the Goods when ready for delivery.
5.2 The Company may deliver in instalments constituting separate contracts and delay in delivery of any instalment will not entitle the Purchaser to terminate the Contract, nor permit the set off of any payments in respect of one delivery against any claim in respect of any other delivery. Where Goods are delivered by instalments the Company may issue separate invoices.
5.3 The costs of clearing the Goods for export from the UK and import into the country of delivery shall be borne by the Purchaser unless the OA states otherwise; the Purchaser shall clear the Goods for any subsequent export or use and shall comply with the Company’s reasonable instructions in relation to export controls; the Purchaser shall indemnify the Company against any liability in relation to any breach by the Purchaser of this clause 5.3.
6. INSPECTION AND ACCEPTANCE
The Purchaser shall inspect and test the Goods and within 7 days of Delivery and shall give written notice to the Company of any damage or claim. In the absence of such notice, the Goods shall be deemed to comply with the Contract and the Purchaser shall accept them, subject to the rights of the Purchaser pursuant to clause 7.
7.1 If within the Applicable Guarantee Period any Goods prove defective by reason of faulty design, workmanship or materials the Company will adjust, repair or replace them as it sees fit free of charge provided that:
(a) the Purchaser gives written notice of the defect (with reasonable relevant information) to the Company as soon as reasonably practicable, and in any event within 7 days of the time when the Purchaser discovers the defect, and within the Applicable Guarantee Period;
(b) the Goods have been used solely for their proper purpose and in accordance with all Company instructions;
(c) the defect has not been caused by fire, accident, misuse, neglect, incorrect implantation, surgery or use by the Purchaser or its customers, agents or servants, unauthorised alteration, repair or maintenance or the use of sub-standard consumables and has not arisen from fair wear and tear;
(d) the defect has not arisen from any design, specification, component or material supplied by or on behalf of the Purchaser or its clients;
(e) no part of the Goods has been replaced with a part not supplied or approved by the Company;
(f) payment in full of any sums due in respect of the Goods is not overdue; and
(g) the Purchaser shall be liable for any costs incurred by the Company in responding to claims caused by operator, surgical or medical error or incorrect application or other default of the Purchaser or other third party.
7.2 The risk in Goods returned to the Company pursuant to clause 7.1 shall at all times remain the Purchaser's and the Goods shall be packaged as the Company instructs and despatched at the Purchaser's expense. Costs of carriage on the Goods' return to the Purchaser shall be borne by the Company where the defect is covered by this guarantee.
7.3 If the Goods incorporate goods provided by a third party, the obligations of the Company in respect of such goods shall not exceed the warranty obligations of such third party to the Company nor exceed any time limit upon those obligations.
7.4 The Applicable Guarantee Period for any Goods replaced or repaired pursuant to the initial guarantee shall be the remaining period, if any, of such initial Applicable Guarantee Period.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Nothing in these Terms shall limit or exclude any liability of the Company for death or personal injury caused by its negligence or for fraudulent misrepresentation or for any other liability which may not be limited or excluded in law.
8.2 In an effort to keep the contract price as low as possible and as the Purchaser is better able than the Company to quantify loss which it may suffer from a breach of contract and to insure accordingly, the Purchaser agrees to the Company limiting its liability and therefore agrees that save as expressly agreed in writing or as mandatorily implied by law:
(a) the Company shall have no obligation in respect of the Goods except for its undertaking in clause 7 above (“the Guarantee”) and as expressly stated by the Contract;
(b) the Purchaser acknowledges that the Company’s obligations and liabilities in respect of the Goods are exhaustively defined in these Terms and that such express obligations are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the Goods including, without limitation, as to the condition, quality, performance or fitness for the purpose of the Goods or any part of them;
(c) subject to clause 8.1, the Company shall not be liable for any loss which is or which represents loss of profit, revenue, benefit, anticipated savings or goodwill, loss of use of any asset, loss of data, business interruption, management time or third party liability.
8.3 Subject to clause 8.1, the aggregate liability of the Company (whether in contract, tort, breach of statutory duty or otherwise) for all breaches under or non-performance of its obligations or contemplated by any Contract shall not exceed a sum equal to one and a half times the amount paid for any Goods the subject of such Contract.
8.4 Subject to clause 8.1, the Purchaser shall not rely upon any representation concerning the Goods unless made by the Company in writing in the Contract.
8.5 Any liability of the Company under any warranty, indemnity or other obligation stated or confirmed in the OA is subject to all exclusions and limitations in these Terms.
9. REGULATORY COMPLIANCE, LICENCES AND PRE-DELIVERY TESTS
9.1 The Goods will comply with mandatory United Kingdom (“UK”) regulations applicable to the manufacture and non-consumer sale of the Goods at the date of delivery but no other warranty or undertaking as to regulatory compliance in the UK or elsewhere is given or to be implied unless specifically given in writing signed by a director of the Company. The Purchaser shall comply with all applicable laws relating to the Goods, their use, storage and disposal and the provision of the Purchaser’s goods and services and with all reasonable directions of the Company relating to the use storage and disposal of the Goods.
9.2 The Purchaser shall obtain in good time and maintain any applicable licences, permits, consents and approvals relating to import, export and use of the Goods and provision of the Purchaser’s goods and services and will indemnify the Company against all liability in relation to Goods supplied without them or in breach of their terms. The Company shall not be responsible for any liability in relation to delay in obtaining or failure to obtain such licences, permits or approvals.
9.3 The Purchaser acknowledges that the Company:
(a) is a manufacturer of medical devices and does not perform surgical or medicinal services and the Purchaser is responsible for the correct and appropriate surgery and surgical technique being performed and medical procedures;
(b) is not responsible for the selection of any particular surgery or surgical technique or medical procedure to be used on a particular patient or animal.
10. TERMINATION OF CONTRACT
10.1 The Company may terminate separately all or any part of the Contract forthwith by notice in writing to the Purchaser and every other contract with the Purchaser if:
(a) the Purchaser fails to make payments to the Company under any contract as they fall due or the Purchaser otherwise breaches any such contract and the breach or non-payment is not remedied within seven days of notice from the Company; or
(b) the Purchaser is, or is deemed to be, insolvent or suspends payment or performance of its obligations or threatens to do so, or the Company has reasonable grounds for believing it will fail to discharge its obligations under any contract or steps are taken to propose any composition, scheme or arrangement involving the Purchaser and its creditors or obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Purchaser or any of its property or enforce any security over the Purchaser's property, or repossess any goods in its possession or wind up or dissolve the Purchaser, or sequestrate its estate or dissolve it or file a petition in bankruptcy or other relief from creditors; or
(c) control of the Purchaser passes from the present shareholders, owners or controllers to other persons whom the Company in its absolute discretion regards as prejudicial to its reasonable interests; or
(d) in the reasonable opinion of the Company the Purchaser has ceased or threatened to cease to trade; or
(e) where the Purchaser is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner; or
(f) anything corresponding to any of the above occurs outside England and Wales.
10.2 If the Contract is terminated, the Company (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:
(a) declare immediately payable (and so interest-bearing under clause 3.2) any sums owed by the Purchaser, proceed against the Purchaser for the same and/or damages, and appropriate any payment by the Purchaser as the Company thinks fit (notwithstanding any purported appropriation by the Purchaser);
(b) suspend further performance of any Contract and/or any credit granted to the Purchaser on any account (and the time for delivery by the Company shall be extended by the period of such suspension);
(c) take possession of and deal with (including the sale of) any materials and other assets of the Purchaser held by or on behalf of the Company and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any Contract including any interest and costs arising thereon.
11. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
11.1 As between the Purchaser and the Company, the Company retains ownership of all inventions, designs, copyrights, know-how and processes and all and any other intellectual / industrial property rights whether or not registered or registerable and all goodwill associated thereto relevant to the Goods and all specifications, designs, programs or other material issued by or on behalf of the Company. The Purchaser acknowledges that any such item is confidential and agrees not to use it or any other confidential information of the Company for any purpose (other than the purpose for which it was disclosed) nor reproduce it in any form nor disclose it to third parties. The Purchaser shall not seek to abstract from the Goods any confidential information regarding their design, construction or otherwise (and without limitation to the foregoing shall not reverse engineer the Goods) and all rights subsisting in such material are reserved.
11.2 The Purchaser shall obtain similar undertakings as those set out in clause 11.1 from its customers and indemnify the Company against any liability in relation to any failure to do so.
12. FORCE MAJEURE
The Company shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its reasonable control (including without limitation any trade dispute; fire, flood or act of god; armed conflict; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting any necessary licence or permit; or any repudiatory event by the Purchaser). In such circumstances the Company may terminate the Contract whereupon the Purchaser shall pay a sum equal to the costs to the Company of performing the Contract to the date of termination and the Company's liability shall be limited to repayment of any sums paid in respect of undelivered Goods less such costs.
13. USE OF GOODS AND SAFETY
The Purchaser shall:
(a) procure that the Goods are used only for the purposes and in the manner for which they were designed and supplied as specified in the quotation and OA; that all persons likely to use or come into contact with the Goods receive appropriate training and copies of applicable literature supplied by the Company; that any implantation of the Goods and any surgery is performed by sufficiently qualified, trained and competent persons who shall exercise all due skill, care and diligence when implanting the Goods and performing surgery; ask clients and patients to provide it with any relevant information in order for surgery to be performed and the Goods used safely and correctly (including but not limited to details of any pre-existing medical or health conditions); carry out any applicable risk assessments in relation to each client and patient who the Goods are going to be used in relation to and keep records of the results; promptly inform the Company of any issues experienced with using or implanting the Goods; upon reasonable request promptly provide the Company with copies of its licences, permits, consents and approvals to demonstrate compliance with the Contract; ensure that all third parties who use or may be affected by or rely upon the Goods are made fully and clearly aware in advance of the Goods being used of all possible risks, hazards (both patent and latent) associated with them and limitations on their effectiveness the types of animal or persons the Goods may be unsuitable for, and the existence of any conditions that may make the Goods unsafe or unsuitable; and that safe working practices are adopted and complied. Any warning notices displayed on the Goods or their packaging must not be removed or obscured; the Purchaser shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning notices and shall take such steps as are reasonable to enforce such agreement;
(b) promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them) and shall procure compliance by all relevant persons and shall pay the Company's reasonable charges for additional or replacement parts supplied by the Company for this purpose;
(c) not do anything or omit to do anything that would bring the Company into disrepute;
(d) maintain and make available to the Company all records necessary to enable Goods to be traced to their ultimate buyer or user; and
(e) indemnify the Company against any liability in relation to any breach of the Purchaser's obligations under this clause 13.
14.1 The Purchaser shall indemnify the Company against all liability in relation to any specification, design, information or component which the Purchaser has supplied or arranged for the supply to the Company and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.
14.2 No indulgence, forbearance, partial exercise of any right or remedy or previous waiver shall prejudice any rights or remedies. Remedies shall be cumulative and no choice of remedy shall preclude any other remedy.
14.3 The Purchaser shall not assign, mortgage, charge, sub-let or otherwise dispose of the Contract or any rights thereunder in whole or in part.
14.4 After termination (howsoever caused) or cancellation, clauses 3.2, 4, 8, 10.2, 11, 13 and 14 shall continue in full effect.
14.5 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which is available apart from that Act.
15.6 All Contracts shall be governed and construed in accordance with English law and the Purchaser irrevocably submits to exclusive jurisdiction of the Courts of England without prejudice to which the Company may apply for any provisional or conservatory measures or interim relief in any court having jurisdiction in the Purchaser's country or the country where the Goods are then located.