TERMS AND CONDITIONS OF BUSINESS TO OUR BUSINESS CUSTOMERS
The customer’s attention is drawn in particular to the provisions of clause 9.
a day (other than a Saturday, Sunday or public holiday).
the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions.
the Company, person or firm who purchases the Products from the Supplier.
Force Majeure Event:
an event or circumstance beyond a party’s reasonable control, including but not limited to Acts of God, war, civil disturbance, governmental restrictions, import or export regulations, industrial disputes and difficulties in obtaining labour or materials.
Intellectual Property Rights:
patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
the Customer’s order for the Products, as set out in the Customer’s purchase order form OR in the Customer’s written acceptance of the Supplier’s quotation.
the Products (or any part of them) set out in the Order.
any specification for the Products, that is agreed by the Customer and the Supplier.
V-M Orthotics Limited (registered in England and Wales with company number 08014305).
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 re-enacted.
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.
a reference to writing or written includes faxes and emails.
Basis of contract
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.
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 and any applicable Specification are complete and accurate.
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.
Any 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.
A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
The Supplier shall ensure that 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) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered.
The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Products are ready.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence (unless expressly agreed with the customer as a timed delivery slot). The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or 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.
Without prejudice to clause 3.3 if the Supplier fails to deliver the Products, 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.
The Supplier may deliver the Products by instalments, 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.
The Supplier is under no obligation to accept Products for return in the absence of any breach of clause 4.1 or other default of the Supplier. However, if the Supplier decides to accept Products for return in these circumstances, the Customer must pay for the return of the Products and is also responsible for the risk of return of the Products. The Supplier reserves the right to require the Customer to pay such handling charges as the Supplier advises.
The Supplier warrants that on delivery the Products shall:
conform in all material respects with their description and any applicable Specification; and
be free from material defects in design, material and workmanship.
Subject to clause 4.3:
the Customer must give notice in writing to the Supplier if some or all of the Products do not comply with the warranty set out in clause 4.1 within 3 days of delivery. The Customer must provide the order/invoice number and the code numbers of the Products in the notice;
the Supplier must be given a reasonable opportunity of examining such Products; and
the Customer (if asked to do so by the Supplier) must return such Products to the Supplier’s place of business at the Supplier’s cost. Such products must be in their original packaging,
the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
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:
the Customer makes any further use of such Products after giving notice in accordance with clause 4.2;
the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage and maintenance of the Products or (if there are none) good trade practice regarding the same;
the Customer alters or repairs such Products without the written consent of the Supplier;
the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
the Customer has allowed any of the Products to become soiled in any way.
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.
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.
These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
Title and risk
The risk in the Products shall pass to the Customer on completion of delivery.
Title to the Products shall not pass to the Customer until the earlier of:
the Supplier receiving 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
the Customer reselling the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 5.4.
Until title to the Products has passed to the Customer, the Customer shall:
store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the Supplier’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
give the Supplier such information relating to the Products as the Supplier may require from time to time.
Subject to clause 5.5, 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:
it does so as principal and not as the Supplier’s agent; and
title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have:
the Customer’s right to resell the Products or use them in the ordinary course of its business ceases immediately; and
the Supplier may at any time:
require the Customer to deliver up all Products in its possession that have not been resold; and
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. The Customer shall (if required by the Supplier) obtain any necessary consent to enter the premises of any third party.
Price and payment
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.
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:
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);
any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification;
any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions; or
any increase of tax (including VAT) or the imposition of any form of taxation and statutory, governmental, provincial, local, government or municipal charges, duties, imports, contributions or levies and any interest, charges or costs relating thereto.
The price of the Products are exclusive of value added tax (VAT) and postage and packaging.
Any Customer who qualifies for exemption from paying VAT must supply such evidence as the Supplier shall require before the Supplier issues written acceptance of the Order to the Customer and complete where relevant a VAT exemption certificate/paperwork.
The Supplier may invoice the Customer for the Products on or at any time after the completion of delivery.
The Customer shall pay the invoice in full and in cleared funds within 30 days.
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 annual rate of 8% above the Bank of England base rate. 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 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).
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in the Products are either vested in or licenced to the Supplier and the Customer shall not do anything or allow or permit anything to be done that would amount to an infringement of any Intellectual Property Rights in the Products, and the Customer shall indemnify the Supplier from and against all liability arising in relation thereto.
Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
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;
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;
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.
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 8.1.1 to clause 8.1.3, 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.
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.
Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination.
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.
Limitation of liability
Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
Subject to clause 9.1:
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
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.
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 four weeks, the party not affected may terminate this Contract by giving seven days written notice to the affected party.
Assignment and other dealings.
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.
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.
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.
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.
Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
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.
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 fax or email.
Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
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.
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.