SOURCE MEDICAL LIMITED TERMS AND CONDITIONS OF SALE
1 – FORMATION OF CONTRACT:
(a) The following terms and conditions of trading (“Terms”) shall apply to the agreement between Source Medical Limited (“The Company”) and you (the “Contract”) for the sale of goods by Source Medical to you (“Goods”) to the exclusion of all other terms and conditions (including any terms and conditions from or referred to by you or which could be inferred by trade, custom, practice or course of dealing), subject to any variation in accordance with Clause 9(d).
(b) An order or acceptance of a quotation or tender for Goods by you shall be deemed to be an offer by you to buy Goods subject to these Terms. A binding Contract shall only be created when (i) Source Medical sends you written notice that your Purchase Order has been accepted; or (ii) (if earlier) the Goods (or part thereof) are despatched by Source Medical.
(c) You acknowledge that you have not relied on any statement, promise, or representation made or given by or on behalf of Source Medical which is not set out in these Terms; including statements, promises or representations contained in any advertising matter, catalogues, brochures, price lists and any verbal representation by any employee, agent or representative of Source Medical. Subject to Clause 7(c) you shall have no remedy in respect of any other such representation or warranty.
2 – DELIVERY:
(a) Unless otherwise expressly specified in writing by Source Medical, all deliveries of Goods to (i) premises within the UK and Ireland shall be deemed to be delivered when unloaded at your specified premises; and (ii) premises outside the UK and Ireland shall be deemed to be delivered when made available to you for collection Ex Works (Source Medical premises at Ensign House, Lisle Road, High Wycombe, HP13) and you shall be liable to pay any expenses incurred by Source Medical in delivering the Goods to your premises at your request.
(b) Any periods or dates quoted for despatch or delivery are estimates only and shall not be conditions of the Contract. Save for Clause 5, time shall not be of the essence of the Contract.
(c) Source Medical reserves the right to deliver Goods by instalments. Each such instalment shall be invoiced separately and shall be deemed to constitute a separate Contract subject to these Terms. No default by Source Medical in respect of one or more instalments shall entitle you to treat any other Contract as repudiated.
(d) If you wish to cancel or reduce your order, Source Medical reserves the right to charge you for any special parts and work undertaken in connection with your order prior to receiving your written confirmation of order reduction or cancellation.
(e) If delivery of any or all of the Goods or the performance of any of Source Medical’s other obligations under the Contract is prevented or delayed by reason of any cause or circumstance beyond Source Medical’s reasonable control (including that of a Source Medical employee, agent or representative) including, but not limited to, any act of God, fire, flood, strike, government action or industrial dispute, then Source Medical shall not be liable for any loss or damage arising directly or indirectly through or in consequence of such event(s) and Source Medical reserves the right upon giving written notice to you, to cancel the Contract, suspend delivery or extend the time for delivery until such cause or circumstance has ceased; providing that the foregoing shall not prejudice Source Medical’s right to receive payment for Goods already delivered to you.
(f) Source Medical accepts no responsibility for non-delivery of Goods unless written notice of such is received by Source Medical within fourteen (14) days of the date of invoice issued by Source Medical in respect of the Goods. Any liability of Source Medical for non-delivery 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.
3 – RISK/TITLE:
(a) Unless otherwise expressly agreed in writing by Source Medical, risk in the Goods shall pass to you on delivery of the Goods to you.
(b) Ownership of the Goods shall not pass from Source Medical to you until: (i) you have paid Source Medical in full; and (ii) no other sums are outstanding from you to Source Medical on any account, whether or not such sums have become due for payment.
(c) Until ownership of the Goods passes to you, you shall (i) hold the Goods on a fiduciary basis as Bailee for Source Medical; (ii) store the Goods at no cost to Source Medical separately from anyone else’s goods in such a way that they are clearly identifiable as Source Medical’s property; (iii) not permit any charge, lien or other encumbrance whatsoever to be created over the Goods; (iv) take proper care of the Goods and take all reasonable steps to prevent damage to or deterioration of them; and (v) insure the Goods to Source Medical’s reasonable satisfaction and, if reasonably required to do so, produce to Source Medical a copy of the policy or policies current premium or other evidence of the existence or payment thereof.
4 – PURCHASER’S SITE, LICENCES, INSTALLATION AND MAINTENANCE:
(a) Unless otherwise agreed in writing in respect of Goods delivered to your specified premises within the UK and Ireland, Source Medical shall install the Goods at those premises without further charge to you provided you have, at your own cost, prepared those premises in readiness for installation (as specified in any site survey report, manual or otherwise). Ongoing maintenance shall be subject to prior written agreement between the parties, and at additional cost to you.
(b) In respect of Goods delivered to premises outside the UK and Ireland, installation and maintenance shall be subject to prior written agreement, and at additional cost to you.
(c) The Purchaser hereby warrants that it has provided, or will provide in good time, Source Medical with all available information regarding the Purchaser’s site, structures, facilities, buildings and land (together or individually the ‘site’) and that it will provide all licences and permits required.
5 – PAYMENT:
(a) Unless otherwise agreed in writing by Source Medical, the price of the Goods shall be as specified in Source Medical’s price list as at the date of delivery of the Goods, such price being exclusive of value added tax (or equivalent), costs of carriage and packing, applicable costs of installation – save in respect of Goods delivered to premises in the UK and Ireland in accordance with Clause 4(a) and any other applicable charges as stated in the price list and specified in the invoice.
(b) Payment is due in accordance with Source Medical’s invoice, the total amount of which must be received by Source Medical within thirty (30) calendar days of the date of the invoice.
(c) Source Medical reserves the right to apply any sums received from you to discharge any part of your accumulated liability and to recover interest from you on overdue invoices in accordance with and to the fullest extent permitted by Law. Statutory interest will accrue at 8% above the Bank of England reference rate in force on the date the debt becomes overdue, and at any subsequent rate where the reference rate changes and the debt remains unpaid, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002. Such interest is chargeable throughout the period of non-payment from the due date until payment is made by you to Source Medical.
(d) Source Medical reserves the right to charge you fixed costs in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and costs in accordance with the Late Payment of Commercial Debts Regulations 2002 in the event of non-payment of any amounts due.
(e) Where an invoice is raised containing pricing errors, no credit note will be issued nor will any other rectification be made by Source Medical, unless you notify such errors to Source Medical by no later than fourteen (14) days from the invoice date.
(f) You shall make all payments due under the Contract without any deduction or withholding by way of set-off, counterclaim, discount or abatement.
(g) If, in Source Medical’s reasonable opinion, your credit-worthiness deteriorates before delivery of the Goods, Source Medical may require full or partial payment of all sums outstanding from you to Source Medical, prior to delivery of the Goods or the provision of security for payment by you in a form acceptable to Source Medical.
6 – WARRANTY:
(a) Source Medical warrants only that: (i) all instruments, systems, parts and accessories shall perform as set forth in Source Medical’s product specifications and operator manuals as at the date of delivery for the period set forth in the Services Brochure, or (if no date is specified) for twelve (12) months from the date of commissioning (such date not to be unreasonably delayed); (ii) all consumables (such as reagents, calibrators and controls) shall conform to the quantity and content stated on the label and perform consistent with specifications and product inserts until the specified expiration date, or (if no date is specified) for twelve (12) months from the date of delivery; and (iii) accurate quantities of any supply items (including needle cartridges; sample and reagent cups, membranes; stylets; and pipettes) ordered will be delivered and shall conform to the quantity and content stated on the label.
(b) If a third party manufactured accessory or peripheral is supplied to you under a Contract, Source Medical assigns to you the benefit of the warranty provided by the manufacturer, but Source Medical does not warrant the performance of the third party manufactured product or provide any remedy for failure of the third party product to perform. Your exclusive remedy is such remedy that may exist under the warranty rights passed through to you under this paragraph.
(c) Source Medical shall not be obligated under this warranty in respect of any shortage, damage or defect in any consignment of Goods unless Source Medical receives written notice of the shortage, damage, or defect within fourteen (14) calendar days of receipt by you of the Goods and subsequently full details thereof within seven (7) calendar days thereafter.
(d) Source Medical shall not be obligated under this warranty if the need for repairs or replacements directly or indirectly results from: (i) the failure by you to provide at your expense adequate and appropriate equipment, utilities and conditions, as specified by Source Medical, for installation of the Goods in accordance with Clause 4(a); (ii) the failure by you to properly maintain the Goods; (iii) the replacement by you of the Goods with non-Source Medical approved products (a list of such approved products is available on request); (iv) your failure to use or store the Goods in compliance with all relevant treaties, legislation, statutes, directives, regulations, judgements, decisions, orders, regulations, instruments or any other laws of, or having effect in, any jurisdiction; (v) your negligent use, storage or operation of the Goods; (vi) alterations or modifications to the Goods made by you or any other party, including installation or use of software not provided by Source Medical specifically for the Goods, or (vii) the failure of your personnel to attend training offered by Source Medical.
(e) Subject to Clause 6(d), if the Goods do not conform with the warranty specified in Clause 6(a), Source Medical will (at its option) either (i) repair or (ii) replace such Goods with Goods of like quality.
7 – LIABILITY & INDEMNITY:
(a) The provisions of this Clause 7 set out Source Medical’s entire liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of: (i) any breach of these Terms; (ii) any use or resale by you of the Goods and (iii) any representation, statement or tortious act or omission arising under or in connection with these Terms.
(b) Subject to Clause 7(c) below: (i) Source Medical shall not be liable to you by reason of any delay in delivery of the Goods, breach of representation, implied warranty, condition or other term or any duty of common law, statute or under the express or implied terms of these Terms or otherwise, for any loss of profits, revenue, anticipated savings, goodwill or any type of special, indirect or consequential loss or damage (including business interruption), howsoever arising and whether occasioned by Source Medical’s negligence or breach of contract or that of Source Medical’s employees, agents or sub-contractors; and (iii) Source Medical’s total liability arising in connection with the performance or contemplated performance of these Terms shall be limited to the value of the Goods purchased and paid for by you from Source Medical in relation to the relevant consignment.
(c) Any representation, condition or warranty which would be implied or incorporated into these Terms by reason of statute, custom, course of dealing or otherwise is excluded to the fullest extent permitted by Law, save that nothing in these Terms shall restrict or exclude Source Medical’s liability: (i) under Part 1 of the Consumer Protection Act 1987; (ii) in respect of fraudulent misrepresentation; (iii) for death or personal injury caused by Source Medical’s negligence; (iv) arising under Section 12 of the Sale of Goods Act 1979; or (v) arising under Part 2 of the Sale of Goods and Services Act 1982.
(d) Subject to Clause 7(c), you shall indemnify Source Medical against all claims and liabilities suffered or incurred by it as a result of any of the events listed in Clause 6(d)(i)-(vii).
8 – TERMINATION:
(a) If: (i) you fail to pay for the Goods on the due date; (ii) you fail to pay any other debt due to and payable to Source Medical; (iii) you fail to take delivery of the Goods (otherwise in accordance with your contractual rights); (iv) any distress or execution is levied upon your goods; or (v) you offer to make any arrangements with or composition for the benefit of your creditors or commit any act of bankruptcy or if any petition in bankruptcy is presented against you or if (being a limited company) any resolution or petition for your winding-up (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if bankruptcy proceedings are commenced or if an administrator, administrative receiver or a receiver or manager is appointed over the whole or any part of your business, you shall notify Source Medical immediately upon the happening of any such events and all sums outstanding in respect of any Goods sold by Source Medical to you (whether or not such sums have become due for payment) shall immediately become payable and Source Medical may, in its absolute discretion and without prejudice to any other rights Source Medical may have: (i) suspend all deliveries of Goods to you under any contract between us whatsoever and/or terminate any such contract(s) without liability on its part; (ii) repossess and use the Goods; and/or (iii) terminate the Contract forthwith at any time thereafter by giving written notice to you.
9 – GENERAL:
(a) No failure to exercise nor any delay in exercising by either party of any right, power, privilege or remedy under these Terms shall impair or operate as a waiver thereof in whole or in part.
(b) You may not assign, sub contract or in any way dispose of your rights or obligations under the Contract without Source Medical’s prior written consent. Source Medical may at any time assign all or any part of its rights and benefits under these Terms.
(c) The Contract shall be governed by and construed in accordance with English law and shall be subject to the non-exclusive jurisdiction of the English Courts.
(d) These Terms may only be varied if agreed in writing and signed by a Director or by the Company Secretary of Source Medical or their authorised representative.
(e) Any notice to be served by you pursuant to these Terms shall be sent to the following address marked ‘For the Attention of the Company Director’: Source Medical, Ensign House, Lisle Road, High Wycombe, HP13 5SH. Any notice served on you shall be sent to such address as you may notify to Source Medical or, in default of notification, to the address from which the Goods are or were ordered, or, if you are a company, at Source Medical’s option, to your registered office.
(f) Any notice may be validly served by first-class recorded delivery inland post or registered airmail. Any notice sent by recorded first class delivery post to a destination in the United Kingdom shall be deemed to have been received two (2) days after the date of its despatch.
(g) Any provision hereof which is or may be held to be illegal, void or unenforceable shall to that extent be deemed severable and shall not affect any other provision hereof. The parties shall negotiate in good faith to replace such provision with a valid provision which, as far as possible, has the same legal and commercial effect as that which it replaces.
(h) No person (other than a company which is Source Medical’s subsidiary or holding company or a company which is a subsidiary of that holding company) who is not a party to a Contract shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.