Terms and Conditions for Supply of Goods
1. Interpretation
1.1. Definitions:
1. Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
2. Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
3. Conditions: these terms and conditions for supply of goods, as amended from time to time in accordance with clause 12.4, which are attached to each Quotation issued by the Supplier and applicable to the Contract.
4. Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
5. Customer: the person or firm who purchases Goods from the Supplier, as specified in the Order.
6. Delivery Location: the location for delivery of Goods set out in the Order, as may be changed by the parties in written agreement from time to time.
7. Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
8. Goods: any goods specified in the Quotation, and to be purchased by the Customer from the Supplier as confirmed in the Order.
9. Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
10. Order: has the meaning given in clause 2.2 (b).
11. Quotation: the quotation specifying the price of the Goods and the Specification of Goods, with these Conditions attached.
12. Specification: any specification for the Goods as informed to the Customer by the Supplier in Quotations.
13. Supplier: IQ Endoscopes Limited (registered in England and Wales with company number 09462661).
14. VAT: value added tax.
15. Warranty Policy: means the Supplier’s standard warranty policy for the Goods, as set out in Schedule 1 (Warranty Policy).
1.2. Interpretation:
a. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b. A reference to a party includes its personal representatives, successors and permitted assigns.
c. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
d. Any words following the terms including, include or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
e. A reference to writing or written excludes fax but includes email.
2. Basis of contract
2.1. Quotation. When a Customer contacts the Supplier for supply of Goods, the Supplier may issue the Customer a Quotation for the Goods available for the Customer to purchase, which shall incorporate all Conditions herein; and:
a. Quotation shall not constitute an offer and shall only be valid for 30 Business Days from its date of issue;
b. Customer may accept the Quotation by signing the Quotation, or providing written acceptance via email to the Supplier; and
c. a Quotation accepted by the Customer in accordance with clause 2.1 (b) shall apply to all Orders placed by the Customer, subject to clause 7.1.
2.2. Order and Contract. Once the Customer accepted the Quotation under clause 2.1 (b):
a. the Supplier will provide the Customer with its standard customer onboarding form and set up the Customer in its system, before the Customer may place its first Order;
b. after the Supplier informs the Customer that it has been set up as a customer in the Supplier’s system, the Customer may order Goods from the Supplier by specifying the Goods they wish to order by email to the Supplier (Order);
c. each Order constitutes an offer by the Customer to purchase the Goods, in accordance with the Quotation agreed under clause 2.1 (b) and these Conditions. The Customer must ensure that the Order(s) are complete and accurate;
d. an Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order (Order acknowledgement document), at which point and on which date, the Contract shall come into existence;
e. the Customer may not cancel any Order that has been accepted by the Supplier under clause 2.2 (d).
2.3. 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 law, trade custom, practice or course of dealing.
2.4. Any samples, drawings, descriptive matter (including intended use of the Goods), or advertising produced by or on behalf of the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3. Goods
3.1. The Goods are described in the Specification set out in the Quotation, and as specified in each Order.
3.2. The Supplier may make changes to Goods and/or the Specification at any time as required by any law or regulatory requirement applicable to the Goods and the Supplier shall notify the Customer of such change.
4. Delivery
4.1. The Customer acknowledge that the Supplier only arranges delivery of the Goods within the United Kingdom.
4.2. Subject to clause 4.1, the Supplier shall arrange delivery of the Goods to the Delivery Location, on the dispatch date specified in the Order; or if a dispatch date is not specified in the Order or agreed by the parties separately in writing, as soon as practicable after the Order has been accepted under clause 2.2(d).
4.3. Any dates quoted for dispatch or delivery are estimations and time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods 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 Goods.
4.4. The Customer may only return (at the Supplier’s cost and expense) any Goods that are found damaged on arrival, and the Customer’s remedies in respect of these damaged Goods shall be limited to replacement Goods, and the Customer shall not be entitled to a refund.
4.5. If the Supplier fails to deliver any Goods, its liability shall be limited to the price of the Goods that it failed to deliver. The Supplier shall not be liable for any failure or delay delivering the Goods 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 Goods.
4.6. If the Customer fails to accept delivery of the Goods within 1 day of the Supplier notifying the Customer in writing that the Goods are ready for the Customer at the Delivery Location, then, except where such failure is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods, delivery of the Goods shall be deemed to have been completed on the same day on which the Supplier notified the Customer that the Goods were delivered.
4.7. The Supplier may deliver the Goods by instalments subject to the Supplier providing prior written notice to the Customer, and the Supplier may invoice the Customer separately for each instalment. Each instalment shall constitute a separate Contract, and any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Warranty
All warranties provided by the Supplier in relation to the Goods shall only be as set out in the Warranty Policy. Except as provided in the Warranty Policy, all warranties, clauses and other terms implied by statute or common law (including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979) shall to the fullest extent permitted by law, be excluded from the Contract and the supply of Goods.
6. Title
6.1. Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.2. Until title to the Goods has passed to the Customer, the Customer shall:
a. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
b. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
c. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
d. notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d); and
e. give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods and the Customer’s ongoing financial position.
6.3. Subject to clause 6.4, the Customer may only use the Goods in the ordinary course of its business but not otherwise, before the Supplier receives payment for the Goods.
6.4. At any time before title to the Goods passes to the Customer, the Supplier may:
a. by written notice to the Customer, terminate the Customer’s right under clause 6.3; and
b. require the Customer to deliver up all Goods in its possession and control that have not been used, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored, to recover them. The Customer shall procure entry to any such third party’s premises if requested to do so by the Supplier.
7. Price and payment
7.1. The price of the Goods under each Order shall be the price set out in the Quotation accepted by the Customer under clause 2.1 (b), subject to the Supplier’s right to annually increase the price of the Goods in any accepted Quotation, in accordance with the Supplier’s standard price list by written notice to the Customer.
7.2. The price of the Goods shall exclude VAT, which the Customer shall additionally pay to the Supplier at the prevailing rate subject to the receipt of a valid VAT invoice; and costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced separately to the Customer.
7.3. The Supplier shall invoice the Customer for the Goods upon dispatch of Goods.
7.4. The Customer shall pay each invoice submitted by the Supplier within 30 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
7.5. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then without limiting the Supplier’s remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.5 will accrue each day at 8% a year above the Bank of England base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
7.6. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1. This clause 8 shall survive termination of the Contract. References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
8.2. Nothing in the Contract limits any liability for any liability that cannot legally be limited (including death or personal injury caused by negligence, or fraud or fraudulent misrepresentation; or breach of the terms implied by section 12 of the Sale of Goods Act 1979); or the Customer’s payment obligations under the Contract.
8.3. Subject to clause 8.2, the Supplier’s total liability to the Customer under each Order shall not exceed the total sum paid or payable by the Customer under the relevant Order.
8.4. Subject to clause 8.2, the following types of loss are wholly excluded from the Contract: loss of profits (including loss of anticipated savings); loss of sales or business; loss of agreements or contracts; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
8.5. The Supplier shall not, subject to any limitations under applicable law, be liable for any loss or damage which results due to the use of the Goods, in any manner whatsoever, where such use is inconsistent with the Specification and/or any reasonable instruction from the Supplier to the Customer.
9. Indemnity
This clause 9 shall survive termination of the Contract. The Customer shall fully indemnify and hold harmless the Supplier against any Losses suffered or incurred by the Supplier arising from or in connection of any proceedings, claims or demands (including claims relating to breaching any intellectual property rights of any third party), arising from or in connection of the use of the Goods by the Customer, where such use is inconsistent with the Specifications and/or any reasonable instructions from the Supplier to the Customer.
10. Termination
10.1. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
a. 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 30 days of it being notified in writing to do so;
b. 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), obtaining a moratorium, 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;
c. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
d. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
10.2. Without limiting its other rights or remedies, the Supplier may suspend supply of the Goods 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 10.1(b) to clause 10.1(d), 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.
10.3. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.4. On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which the Customer shall pay immediately on receipt.
10.5. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11. Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 90 days, the party not affected may terminate the Contract by giving not less than 30 days’ written notice to the affected party.
12. General
12.1. Assignment and other dealings. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract, provided that it gives prior written notice of such dealing to the Customer. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
12.2. Confidentiality. Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 12.2. Each party may disclose the other party’s confidential information: to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Neither party may use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3. Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.4. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5. Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
12.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 12.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7. Notices.
a. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand; or by next working day delivery service at its registered office; or sent by email to the relevant email addresses specified in this Contract (or an address substituted in writing by the party to be served).
b. Any notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the proper address; or if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
c. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8. Governing law and jurisdiction. 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. 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 the Contract or its subject matter or formation.
Schedule 1 Warranty Policy
1. Supplier warrants that Goods supplied to Customer by Supplier under this Contract shall:
1.1. conform to Specification;
1.2. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by Supplier;
1.3. be free from defects in design, material and workmanship and remain so for the length of shelf life of the Goods as specified in the Specifications in writing (Shelf Life); and
1.4. comply with all applicable statutory and regulatory requirements.
2. Customer may reject any Goods delivered to it that do not comply with paragraph 1, provided that:
2.1. notice of rejection is given to Supplier:
2.1.1. if a defect that is apparent on normal visual inspection, within 5 Business Days of delivery;
2.1.2. in the case of a latent defect, as soon as possible after the latent defect becomes apparent; and
2.1.3. in any event, within the Shelf Life; and
2.2. none of the events listed in paragraph 4 applies.
3. If Customer fails to give notice of rejection in accordance with paragraph 2, it shall be deemed to have accepted the Goods.
4. Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in paragraph 1 in any of the following events:
4.1. Customer makes any further use of those Goods after giving notice in accordance with paragraph 2.1;
4.2. the defect arises because Customer failed to follow Supplier’s oral or written instructions for the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
4.3. the defect arises as a result of Supplier following any information or instruction supplied by Customer;
4.4. Customer alters or repairs those Goods without the written consent of Supplier;
4.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
4.6. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5. If Customer rejects Goods under paragraph 2 then Customer shall be entitled to return the rejected Goods, and require Supplier to repair or replace the rejected Goods.
6. Once Supplier has complied with Customer’s request, it shall have no further liability to Customer for the rejected Goods’ failure to comply with the warranties under paragraph 1.
7. The terms of this Contract shall apply to any repaired or replacement Goods supplied by Supplier.