For the Supply of Goods
1.1 All sales by OR Productivity plc or such of its affiliates as may be otherwise stipulated, (hereafter "Seller") are subject to the special terms of sale specified on offers and sales agreements issued or signed by Seller and to these General Terms. Amendments must be in writing, signed by a duly authorized representative of Seller. Submission of an order to Seller shall mean that Buyer is deemed to have accepted the special and general terms of sale applicable as specified in Seller-issued or signed documents.
1.2 In the event of conflict, the order of priority shall be: (a) the special terms issued or signed by Seller and applicable to the concerned sale, (b) these General Terms.
1.3 "Products" shall mean the products offered for sale by Seller.
2 PRODUCT INFORMATION SUPPLIED TO BUYER
2.1 Catalogues and price lists are supplied to Buyer purely for information, and nothing contained therein shall form any part of these General Terms, and Seller may change prices or the list of Products available for sale at any time without notice, provided, however, that Seller shall not change any prices after Seller has formally accepted an order from Buyer.
2.2 Save as provided in Paragraph 8, Seller makes no representation or warranty regarding Products. Seller shall use its reasonable efforts to deliver Products which conform to the Product specifications issued by Seller or included in Seller's Product catalogues user manuals or other Product information documents but reserves the right to change or modify the design, specification or source of the products. Buyer shall store Products in facilities appropriate for Products' future use, and shall not use Products after the specified ‘Use before Date’.
3.1 Buyer shall submit orders for Products by e-mail, mail or facsimile to Seller or to Seller’s authorised representative. All telephone orders must be confirmed in writing within seven days. Such orders shall specify the following minimum information, with respect to each Product ordered: (i) the Product part number, (ii) the quantity ordered, (iii) the price per item, (iv) the requested delivery dates, (v) agreed delivery and payment terms if applicable, and (vi) the shipping instructions and any other pertinent information.
3.2 An order shall be binding upon Buyer at the time of submission to Seller. Seller shall be bound only upon formal acceptance by Seller which may be given by e-mail, mail or facsimile.
3.3 Buyer shall not cancel any order, in part or in whole, once Buyer has received Seller's formal acceptance of such order, unless Buyer: (i) notifies Seller of the desired cancellation before the Products are delivered by Seller, and (ii) agrees to pay Seller a cancellation fee amounting to fifty percent (50%) of the total order or part order to be cancelled.
3.4 Unless expressly authorized by Seller in writing, orders for Products shall not be accepted unless they result in a total net purchase of at least £50 (FIFTY POUNDS). In case Seller does accept any order for a smaller net total amount, Seller reserves the right to apply special handling charges to such order.
4 DELIVERY, TITLE, RISK
4.1 Products are sold FOB shipping warehouse, provided, however, that Seller shall maintain, directly or indirectly through Seller's authorised representative, an inventory of Products at a warehouse located within Buyer's country. The risk associated with loss of, or damage to, Products shall be for Buyer's account as from the time of delivery to the carrier.
4.2 Title to the Products shall pass to Buyer when Seller receives full payment from Buyer.
4.3 Buyer shall not refuse delivery of partial shipments or of any shipment that includes Product errors or damaged Products. To notify Seller of damaged products or errors, Buyer shall make the appropriate notice on the shipment documents at the time of delivery of Products, and shall send a copy of such annotated shipment documents to Seller at the latest ten (10) days after such delivery. Failing such notification, Buyer shall have no right to claim that Products shipped were not in perfect condition and corresponding to the invoice and Seller shall not be responsible for any defects which examination of Products would or should have revealed. Buyer shall store the Products until returned to Seller.
4.4 In case of faulty Products, Seller shall use its reasonable efforts to promptly ship, at Seller's exclusive cost, replacement Products to Buyer. Such replacement Products shall be invoiced separately to Buyer, at the prices agreed in the accepted order, while Products returned and accepted by Seller pursuant to Seller's Product return policy set out in paragraph 12 shall be credited to Buyer at the invoiced price.
5 PRICES, INVOICES
5.1 The Product price list current at the time the order is accepted by Seller shall determine the invoice price, unless Seller notifies Buyer of a different price. Seller may at its discretion change the prices for the Products. All prices are exclusive of duty or tax, in particular VAT, which Buyer shall be liable to pay at the applicable rate from time to time.
5.2 Seller shall use its reasonable efforts to issue invoices for Products at the soonest on the day of shipment of an order. Any one order may result in several and separate invoices from Seller in case of separate shipments, provided that each invoice shall clearly reference the order it corresponds to.
6 PAYMENT TERMS
6.1 Buyer shall pay all invoices for Products within thirty (30) days net of the date of the invoice. Payment shall be considered as effective only upon receipt of the full amount invoiced, without any deduction of any kind, into the bank account identified separately by Seller to Buyer, in the currency specified in the invoice.
6.2 Any amount not received by Seller when due shall automatically accrue interest at the late payment interest rate of four percent (4%) above the base rate of the Bank of England from time to time or, if higher, and if applicable, the rate pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.3 Until such time as property in the Products passes from Seller pursuant to clause 4.2 or upon the occurrence of any of the termination events in clause 14 below, Seller may (without prejudice to any of its other rights and remedies) by notice in writing request Buyer to deliver up to it such Products as have not been resold. If Buyer fails to do so within 14 days Seller may enter upon any land or premises owned, occupied or controlled by Buyer where such Products are situated and repossess the Products and take all necessary steps to enable it to recover and dispose of the Products.
6.4 Seller may suspend any further shipment of Products, even after orders have been accepted, until any and all overdue amounts, including accrued late payment interest charges until the date of actual payment, have been paid into Seller's bank account. Such remedies are in addition, not in lieu of, any other remedies available to Seller under applicable law.
6.5 Buyer shall not be entitled to deduct or set off against any sum due to Seller any monies which are not presently payable by Seller or in relation to which Seller disputes liability.
7 LIMITATION OF LIABILITY - FORCE MAJEURE
7.1 Seller shall use reasonable efforts to deliver Products upon the dates or within the delays specified in the accepted order, but Seller shall not be liable in case of late delivery, and Buyer shall not refuse, in part or in whole, any delivery of Products due to any delay in shipment.
7.2 Seller shall not be liable to Buyer for failing to perform, in whole or in part, any of its obligations if such failure is caused by Force Majeure. Force Majeure is understood, for the purposes of these General Terms, to include any and all events beyond the reasonable control of Seller. Seller shall inform Buyer of the occurrence of the Force Majeure event promptly, as well as of the expected effect on the fulfillment of Seller's obligations. Moreover, Seller shall use its reasonable efforts, however, to mitigate the consequences of Force Majeure, or to find alternative means of fulfilling its obligations in reasonably comparable economic ways. In case Force Majeure is preventing, or expected by Seller to prevent, Seller from delivering Products ordered to Buyer for more than thirty
(30) days past the planned date of delivery, Buyer and Seller shall have the right to cancel the concerned order in whole or in part, by informing the other party in writing at any time before the effective shipment of the Products by Seller.
8 LIMITED PRODUCT WARRANTY
8.1 Seller grants Buyer with respect to the particular Products that benefit from a product warranty, a limited Product warranty in the terms set out in the relevant Product documentation or packaging. The remedies set out in such Product warranty are the only remedies available in the event of breach of such warranty.
8.2 Save as expressly provided in these General Terms no term, condition or warranty is made or implied, including as to the quality (satisfactory or otherwise) or fitness of the Products supplied, or to the effect that Products will be suitable for any particular purpose or for use under any specific conditions which may be known or made known to Seller.
8.3 Without prejudice to paragraph 8.1 above and to the extent permissible by law, Seller shall be under no liability to Buyer for any loss, damage, injury or expense whatsoever arising from a defect in the Products or from any cause whatsoever relating to the Products.
8.4 Any liability that Seller may have under these General Terms shall be limited to the damage suffered directly by Buyer and shall in no case exceed the sums payable in respect of those Products which have been supplied in breach of these General Terms.
8.5 Seller shall not be liable in contract, tort (including negligence or breach of statutory duty) statute or otherwise for any indirect or consequential loss or damage of any kind or for any increased costs or expenses or for loss of profit, business, use, contract, revenues or savings, whether or not Seller has been advised of the possibility of such loss and for the avoidance of doubt Buyer hereby waives all and any rights to claim any contribution from Seller in respect of any liability on the part of Buyer to any third party in respect of any loss and/or injury or damage for which Seller is also liable to such third party pursuant to the Civil Liability (Contribution) Act 1978.
8.6 No employee, agent or representative of Seller shall have any authority to bind Seller to any statement concerning the Products which is not expressly contained or referred to in these General Terms. Buyer shall have no remedy in respect of any statement, whether written or oral (other than a fraudulent misstatement) made to it upon which it relied in entering into these General Terms and Seller shall have no liability to Buyer other than pursuant to the express terms of these General Terms.
8.7 Nothing in these General Terms shall exclude or restrict any implied conditions or warranties or exclude or restrict Seller's liability to the extent that such cannot be excluded or restricted by law.
Buyer shall maintain a tracking system which shall record or allow it to retrieve, in the format required by law, for the lifetime of each Seller's product used by Buyer (plus five years), all information on each Seller's product which is needed to comply with all legal requirements and/or official Guidelines which are or may become applicable to such Seller's products, including information on the end-user.
Buyer shall immediately notify the responsible Seller's Director of Quality Assurance at the Seller's address by telephone and fax with a letter of confirmation by registered mail of any information on product performance or safety including, but not limited to, any malfunction, failure, deterioration in the characteristics and/or performance, as well as inaccuracies in the instructions for use, coming to the attention of Buyer. Buyer shall hand over to Seller all relevant documentation pertaining thereto including in relation to end users, customers and patients.
11 FIELD ACTION
Buyer shall actively assist Seller in taking any steps required by Seller to perform a field action with regard to Seller's Products purchased by Buyer, including but not limited to implementation of any update, upgrade, change order, reminder to users correspondence regarding correct use, recall or withdrawal of Products. Buyer shall be responsible for its own costs of such assistance unless otherwise agreed.
12 PRODUCT RETURN POLICY
12.1 Seller must be informed of any Product return plan by Buyer and must approve such plan.
12.2 Minimum criteria for return:
a. Products must be in original packaging, and undamaged.
b. Packaging of all sterile Products must not be damaged or broken.
c. Seller must inspect systems, etc. before acceptance. Cost of possible repair will be charged to Buyer.
d. Credit will be granted to Buyer only if and when returned Product is accepted by Seller.
12.3 Seller shall not, under any circumstances, accept return of Products having their "use before date" expired or less than three months to run after the date of return.
12.4 Buyer may request that refused returned Products be re-shipped to it, at its exclusive expense; or Seller will have refused Product destroyed.
13 DATA PROTECTION
which Buyer provides or which is obtained in dealings with Buyer may be held by Seller in accordance with the applicable data protection laws and will be used by Seller, affiliates, its agents and sub-contractors to provide the Products and to review, develop and improve the Products and any related services and to enable Seller to provide Buyer and other customers with relevant information through marketing materials.
Seller shall be entitled (without prejudice to its other rights and remedies against Buyer) by notice in writing to Buyer to terminate or suspend any agreement for the purchase of Products if
- Buyer permits any judgment to be taken or levied against it, becomes insolvent or unable to pay its debts, goes into liquidation or enters into any voluntary arrangement with its creditors or members, commences or has commenced against it any proceedings for liquidation or any voluntary arrangement, has a receiver or administrative receiver appointed over any of its assets, presents or has presented against it a petition for the appointment of an administrator or applies for an administration order, has a moratorium imposed pursuant to section 1A Insolvency Act 1986 (as amended); or suffers or undertakes anything analogous to the foregoing under the laws of any applicable jurisdiction; or - breaches any of its obligations under these General Terms.
15.1 The validity, interpretation and enforcement of this Agreement shall be governed solely by the laws of England.
15.2 To the extent legally possible, and in the event the parties cannot find an amicable solution after reasonable efforts and negotiations, all disputes that arise out of this Agreement or in connection therewith shall be heard by the competent courts of England. Notwithstanding the foregoing, Seller shall have the right to seek injunctive relief and/or bring in an action for payment of debts against Buyer before any competent court, including courts with jurisdiction according to the registered address of Buyer or the address of shipment origin or destination of Products.
Seller shall not be deemed to have waived any of its rights or remedies whatsoever unless such waiver is in writing and signed by a duly authorized representative of Seller. No delay or failure of Seller in exercising or enforcing any of its rights or remedies shall operate as a waiver thereof.
The invalidity or unenforceability for any reason of any clause or part thereof in these General Terms shall not prejudice or affect the validity or enforceability of the remainder.
15.5 Buyer may not assign or transfer any of its obligations under this agreement without the prior written agreement of Seller.
15.6 Any notice required or permitted to be given by one party to the other under these General Terms of Sale shall be sent by registered mail or by special courier to the other party at the address provided in the formal acceptance by the Seller, or at any other address subsequently notified by one party to the other; any such notice shall be deemed to have been received not later than ten (10) days after having been handed over to the post office or to the special courier service.
For the Supply of Services
1.1 These Terms and Conditions shall apply to the provision of the services detailed overleaf (“Services”) by OR productivity PLC a company registered in England & Wales under number 07776309 whose registered office is at: c/o Berry Smith LLP, Haywood House, Dumfries Place, Cardiff CF10 3GA or such of its affiliates as may be otherwise stipulated (“Supplier”) to you (“Client”) and to the payment of this invoice. No other terms and conditions shall apply to the provision of Services or to this invoice unless agreed upon in writing between the Supplier and the Client.
1.2 The essence of these Terms and Conditions remains the same as those included with the Supplier’s quotation. The tense has been altered to reflect the inclusion of these Terms and Conditions in an invoice.
2.1 A “business day” means any day other than a Saturday, Sunday or bank holiday.
2.2 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2.3 Words imparting the singular number shall include the plural and vice-versa.
3.1 The fees (“Fees”) for the Services are set out in the quotation and confirmed in this invoice.
3.2 In addition to the Fees, the Supplier is entitled to recover from the Client reasonable incidental expenses for materials used and for third party goods and / or services supplied in connection with the Services. Any such expenses are included in this invoice.
3.3 The Client has agreed to pay the Supplier for any additional services provided by the Supplier that are not specified in the quotation in accordance with the Supplier’s current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between the Supplier and the Client. Any such additional services so rendered are detailed and charged for in this invoice.
3.4 The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
4. Quotation and Contract
4.1 The quotation constitutes written acceptance and confirmation by the Supplier of the Client’s order for the Services (as agreed between the Supplier and the Client).
4.2 The quotation is a contractual offer to provide the Services which the Client has accepted. The Supplier and the Client have entered into a contract for the provision of the Services.
5.1 The Client shall pay the Fees due under this invoice within 30 days of the date of this invoice or otherwise in accordance with any credit terms agreed between the Supplier and the Client.
5.2 Time for payment is of the essence of the contract between the Supplier and the Client.
5.3 If the Client fails to make payment within the period in sub-Clause 5.1, the Supplier shall charge the Client interest at the rate of 5% per annum above the bank LIBOR rate from time to time on the amount outstanding until payment is received in full.
5.4 If the Client fails to make payment within the period in sub-Clause 5.1, the Supplier shall have the right to suspend the provision of the Services (where the provision of the Services is ongoing) until payment is received in full.
5.5 Receipts for payment will be issued by the Supplier only at the Client’s request.
5.6 All payments must be made in GBP unless otherwise agreed in writing between the Supplier and the Client.
6. Liability and Indemnity
6.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under these Terms and Conditions, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s employees, agents or otherwise) in connection with its provision of the Services or the performance of any of its other obligations under these Terms and Conditions or this quotation or with the use by the Client of the Services supplied.
6.2 The Supplier shall not be liable to the Client or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if such delay or failure is due to any cause beyond the Supplier’s reasonable control.
6.3 The Client shall indemnify the Supplier against all damages, costs, claims and expenses suffered by the Supplier arising from any loss or damage to any equipment (including that belonging to third parties) caused by the Client or its agents or employees.
6.4 Nothing in these Terms and Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence or for any other matters for which it would be unlawful to exclude or limit liability.
7. Force Majeure
Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
8.1 All notices under these Terms and Conditions shall be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
8.2 Notices shall be deemed to have been duly given:
(a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
(b) when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
(c) on the fifth business day following mailing, if mailed by national ordinary mail; or
(d) on the tenth business day following mailing, if mailed by airmail.
8.3 All notices under these Terms and Conditions shall be addressed to the most recent address, email address or fax number notified to the other party.
9. No Waiver
9.1 No waiver by the Supplier of any breach of these Terms and Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.2 No failure or delay on the part of either the Supplier or the Client to exercise any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude, any other or further exercise of any other right, power or privilege.
In the event that one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (which shall remain valid and enforceable).
11. Law and Jurisdiction
11.1 These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
11.2 Any dispute, controversy, proceedings or claim between the Seller and the Buyer relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.