SIMPLANTEX HEALTHCARE LIMITED
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS (v1.0) (the "Conditions")
We, Simplantex Healthcare Limited, are a supplier and manufacturer of all-weather-wear gear and other accessories for wheelchair and scooter users. Our registered address is Avco House, 6 Albert Road, East Barnet, Barnet, Hertfordshire EN4 9SH and our company number is 02728640.
For the purpose of these Conditions:
"you" and "yours" shall mean the person(s) or entity ordering our Goods;
Contract shall mean any contract between us and you for the sale and purchase of the Goods, incorporating these Conditions; and
Goods shall mean any goods agreed in the Contract to be supplied to you by us (including any part or parts of them).
If you are entering into this agreement as a consumer (i.e. you are a person acting for purposes outside your trade, business or profession), then you have additional protections: these are set out in Conditions 12 to 16. Where you are not a consumer, the additional Conditions 17 to 22 inclusive shall apply to the Contract.
Please read these Conditions carefully before placing an order for our Goods. In particular, we draw your attention to Conditions 16 and 21 which relate to the extent of our liability to consumers and businesses, respectively.
1. Application of Terms
1.1 Subject to any variation under Condition 1.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document).
1.2 No terms or conditions endorsed on, delivered with or contained in your purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
1.3 These Conditions apply to all our sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by one of our directors or our Research and Marketing Manager who, for the time being, is Gemma Hirst. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in the Contract. Nothing in this Condition 1.3 shall exclude or limit our liability for fraudulent misrepresentation.
1.4 Each order or acceptance of a quotation for Goods by you from us shall be deemed to be an offer by you to buy Goods subject to these Conditions.
1.5 No order placed by you shall be deemed to be accepted by us until a written acknowledgement of order is issued by us or (if earlier) we deliver the Goods to you.
1.6 You shall ensure that the terms of your order and any applicable specification are complete and accurate.
1.7 Any quotation is given on the basis that no Contract shall come into existence until we despatch an acknowledgement of order to you. Any quotation is valid for a period of 30 days only from its date, provided that we have not previously withdrawn it.
2. Description
2.1 The quantity and description of the Goods shall be as set out in our quotation or acknowledgement of order.
2.2 All samples, drawings, descriptive matter, specifications and advertising issued by us and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3. Delivery
3.1 You may collect the Goods from us or we will deliver the goods to you within seven calendar days of the date we receive your order. Where the Goods are made to your specifications or clearly personalised collection or delivery of the Goods may take longer than seven days.
3.2 If you are a consumer, delivery of your order shall be completed when we deliver the Goods to you or you collect them from us. If you are not a consumer, unless otherwise agreed between us in writing, delivery of your order shall take place at our premises when we notify you that they are ready for collection or despatch.
3.3 We will dispatch the Goods at your request using a third party. If we use one of our appointed third party couriers, we will insure the Goods while they are in transit to you. If, however, you request that we dispatch the Goods via Royal Mail we will not be liable for any damage to the Goods which occurs when they are in transit to you.
3.4 We will take reasonable steps to meet the delivery date as set out above. However, occasionally, delivery may be affected by factors beyond our control and so cannot be guaranteed. We will let you know if we become aware of an unexpected delay and will arrange a new delivery date with you.
3.5 If we are not able to deliver the whole of the order at one time due to operational reasons or shortage of stock, we will deliver the order in instalments. We will not charge you extra delivery costs for this. If, however, you ask us to deliver the order in instalments, we may charge you extra delivery costs. Each instalment shall constitute a separate Contract. If we are late delivering an instalment, or one instalment is faulty, that will not entitle you to cancel any other instalment.
3.6 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
3.7 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless you give us written notice of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been delivered.
3.8 If you are a consumer, the additional conditions relating to delivery at Condition 12 will apply to you. If you are not a consumer, the additional conditions relating to delivery at Condition 17 will apply to you.
4. Title & Risk
4.1 The Goods shall be your responsibility from the time of delivery.
4.1.1 Ownership of the Goods will only pass to you when we receive payment in full of all sums due, including any delivery charges in respect of:
4.1.2 the Goods; and
4.1.3 all other sums which are or which become due to us from you.
4.2 If you are not a consumer, the additional conditions relating to title and risk at Condition 20 will apply to you.
5. Price
5.1 Unless otherwise agreed by us in writing, the price for the Goods shall be the price set out in our price list published on the date of delivery or deemed delivery.
5.2 Subject to your ability to claim relief under Condition 13, the price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts you shall pay in addition when it is due to pay for the Goods.
6. Payment
6.1 Subject to Condition 6.4, payment of the price for the Goods is due in pounds sterling within 30 days of issue of the invoice for those Goods unless agreed otherwise in writing by us.
6.2 Time for payment shall be of the essence.
6.3 No payment shall be deemed to have been received until we have received cleared funds.
6.4 All payments payable to us under the Contract shall become due immediately on its termination despite any other provision.
6.5 You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you.
6.6 If you fail to pay us any sum due pursuant to the Contract, you shall be liable to pay interest to us on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of National Westminster Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. If you are not a consumer then the additional conditions relating to interest set out at 19 will apply to you.
7. Quality
7.1 Where we are not the manufacturer of the Goods, we shall endeavour to transfer to you the benefit of any warranty or guarantee given to us.
7.2 We warrant that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
7.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
7.2.2 be reasonably fit for any particular purpose for which the Goods are being bought if you had made known that purpose to us in writing and we have confirmed in writing that it is reasonable for you to rely on the skill and judgement of us.
7.3 If you are a consumer, you have additional rights under Conditions 14 and 15 which relate to your consumer rights and your right to a refund. If you are not a consumer then the additional conditions relating to quality at Condition 18 will apply to you.
8. Assignment
8.1 You may not transfer any of your rights or obligations under these Conditions to another person without our prior written consent, which we will not withhold unreasonably. We can transfer all or any of our rights and obligations under these Conditions to another organisation, but this will not affect your rights under these Conditions.
9. Events Outside our Control
9.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by events outside our reasonable control.
9.2 An event outside our reasonable control includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation): strikes, lock-outs or other industrial action; civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or impossibility of the use of public or private telecommunications networks.
9.3 Our obligations under these Conditions are suspended for the period that an event of the type set out in Condition 9.2 continues, and we will have an extension of time to perform these obligations for the duration of that period. We will take reasonable steps to bring such an event to a close or to find a solution by which our obligations under these Conditions can be performed despite such an event.
10. General
10.1 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
10.2 Words in the singular include the plural and in the plural include the singular.
10.3 A reference to one gender includes a reference to the other gender.
10.4 Condition headings do not affect the interpretation of these Conditions.
10.5 Each right or remedy we have under the Contract is without prejudice to any other right or remedy we have whether under the Contract or not.
10.6 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
10.7 Failure or delay by us in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of our rights under the Contract.
10.8 Any waiver by us of any breach of, or any default under, any provision of the Contract by you shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
10.9 You and we do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
10.10 The formation, existence, construction, performance validity and all other aspects of the Contract shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
11. Notices
11.1 You must send any notices to us by:
Post Simplantex Heathcare Limited, 145a Ashford Road, Eastbourne, East Sussex BN21 3UA;
E-mail: orders@simplantex.co.uk; or
Fax: 0870 870 7141
11.2 We may give notice to you at either the e-mail or postal address you provide to us in your order.
11.3 Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post, in the case of an e-mail, that the e-mail was sent to the specified e-mail address of the addressee, and in the case of a fax, that the fax was sent to the correct fax number of the addressee.
IF YOU ARE A CONSUMER THE FOLLOWING ADDITONAL CONDITIONS SHALL APPLY.
WE DRAW YOUR ATTENTION TO CONDITION 16 IN PARTICULAR
12. Additional Conditions Relating to Delivery
12.1 If you fail to take delivery of your order then, except where this failure is caused by our failure to comply with these Conditions or by an event beyond your control:
12.1.1 we will store the Goods until delivery takes place and may charge you a reasonable sum to cover expenses and insurance.
12.1.2 we shall have no liability to you for late delivery.
13. VAT
13.1 Should you wish to claim relief from value added tax under Schedule 5, Group 14 of the Value Added Tax Act 1983 you must do so at the time you place your order. By claiming relief from value added tax you warrant that you are chronically sick or disabled, eligible for such relief and that the Goods in respect of which relief is being claimed are for your own personal use. We accept no liability for value added tax charged to you where you are eligible for relief from value added tax unless you claim relief in accordance with this Condition 13.
14. Consumer Rights
14.1 You may cancel a Contract at any time within seven working days, beginning on the day after you received the Goods. In this case, you will receive a full refund of the price paid for the Goods in accordance with our refunds policy (set out in Condition 15)
14.2 To cancel a Contract, you must inform us in writing. You must also return the Goods to us immediately, in the same condition in which you received them, and at your own cost and risk. You have a legal obligation to take reasonable care of the Goods while they are in your possession. If you fail to comply with this obligation, we may have a right of action against you for compensation.
14.3 You will not have any right to cancel a Contract to the extent that such Contract relates to Goods made to your specifications or clearly personalised or which by reason of their nature cannot be returned.
14.4 Details of this statutory right, and an explanation of how to exercise it, are provided in the despatch confirmation.
14.5 Nothing in these Conditions This Condition does not affect your statutory rights. For further information about your statutory rights, please contact your local authority Trading Standards office or Citizens Advice Bureau.
15. Our Refunds Policy
15.1 When you return Goods to us:
15.1.1 because you have cancelled the Contract between us within the seven-day cooling-off period (see Condition 14.1), we will process the refund due to you as soon as possible and, in any case, within 30 days of the day you have given notice of your cancellation. In this case, we will refund the price of the Goods in full, including the cost of sending the item to you. However, you will be responsible for the cost of returning the item to us; or
15.1.2 for any other reason, we will examine the returned Goods and will notify you of your refund within a reasonable period of time. We will usually process the refund due to you as soon as possible and, in any case, within 30 days of the day we issued you with a returns number (as provided for in Condition 15.2). Goods returned by you because of a defect will be refunded in full, including a refund of the delivery charges for sending the item to you and the cost incurred by you in returning the item to us.
15.2 Please note that we cannot accept Goods returned under this Condition 15 unless they are accompanied by a returns number. You can obtain a returns number by calling 0800 9800 150.
15.3 We will usually refund any money received from you using the same method originally used by you to pay for your purchase.
16. Limitations of Liability to Consumers
16.1 Subject to Conditions 3, 12 and 16.2, if either we or you fail to comply with these Conditions, neither of us shall be responsible for any losses that the other suffers as a result, except for those losses which are a foreseeable consequence of the failure to comply with these Conditions.
16.2 Neither we nor you shall be responsible for losses that result from our failure to comply with these Conditions including, but not limited to, losses that fall into the following categories:
16.2.1 loss of income or revenue;
16.2.2 loss of business;
16.2.3 loss of anticipated savings;
16.2.4 loss of business;
16.2.5 loss of data; or
16.2.6 iany waste of time.
However, this Condition 16.2 shall not prevent claims for foreseeable loss of, or damage to your physical property.
16.3 This Condition does not exclude or limit in any way our liability for:
16.3.1 death or personal injury caused by our negligence; or
16.3.2 fraud or fraudulent misrepresentation; or
16.3.3 any breach of the implied obligations that we hold title the Goods and that we are entitled to sell them; or
16.3.4 any damage caused to a person (or to a dependant or relative of such a person) wholly or partly by a defect in the Goods; or
16.3.5 any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
IF YOU ARE NOT A CONSUMER THE FOLLOWING ADDITIONAL CONDITIONS SHALL APPLY.
WE DRAW YOUR ATTENTION TO CONDITION 21 IN PARTICULAR
17. Additional Conditions Relating to Delivery
17.1 If for any reason the you fail to accept delivery of any of the Goods when they are ready for delivery, or we are unable to deliver the Goods on time because you have not provided appropriate instructions, documents, licences or authorisations:
17.1.1 risk in the Goods shall pass to you (including for loss or damage caused by our negligence);
17.1.2 the Goods shall be deemed to have been delivered; and
17.1.3 we may store the Goods until delivery, whereupon you shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
17.2 Our liability for non-delivery of the Goods 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.
18. Additional Conditions Relating to Quality
18.1 We shall not be liable for a breach of any of the warranties in Condition 7.2 unless:
18.1.1 You give written notice of the defect to us, and, if the defect is as a result of damage in transit to the carrier, within 7 days of the time when you discover or ought to have discovered the defect;
18.1.2 We are given a reasonable opportunity after receiving the notice of examining such Goods and you (if asked to do so by us) return such Goods to our place of business at your cost for the examination to take place there; and
18.1.3 Any returned Goods are accompanied by a returns number. You can obtain a returns number by calling 0800 9800 150.
18.2 We shall not be liable for a breach of any of the warranties in Condition 7.2 if:
18.2.1 You make any further use of such Goods after giving such notice; or
18.2.2 the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
18.2.3 You alter or repair such Goods without our written consent.
18.3 Subject to Condition 18.1 and Condition 18.2, if any of the Goods do not conform with any of the warranties in Condition 7.2 we shall at our option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if we so request, you shall, at your own expense, return the Goods or the part of such Goods which is defective to us.
18.4 If we comply with Condition 18.3 we shall have no further liability for a breach of any of the warranties in Condition 7.2 in respect of such Goods.
18.5 Any Goods replaced shall belong to us and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
19. Late Payment of Commercial Debts (Interest) Act 1998
19.1 In addition to our right to charge interest contained in Condition 6.6, we reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
20. Risk & Title
20.1 Until ownership of the Goods has passed to you, you shall:
20.1.1 hold the Goods on a fiduciary basis as our bailee;
20.1.2 store the Goods (at no cost to us) separately from all other goods of you or any third party in such a way that they remain readily identifiable as our property;
20.1.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
20.1.4 maintain the Goods in satisfactory condition and keep them insured on our behalf for their full price against all risks to the reasonable satisfaction of us. On request you shall produce the policy of insurance to us.
20.2 You may resell the Goods before ownership has passed to it solely on the following conditions:
20.2.1 any sale shall be effected in the ordinary course of your business at full market value; and
20.2.2 any such sale shall be a sale of our property on your own behalf and you shall deal as principal when making such a sale.
20.3 Your right to possession of the Goods shall terminate immediately if:
20.3.1 you have a bankruptcy order made against you or you make an arrangement or composition with your creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of in respect of your undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of you or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for your winding-up of or for the granting of an administration order in respect of you, or any proceedings are commenced relating to the insolvency or possible insolvency of you; or
20.3.2 you suffer or allow any execution, whether legal or equitable, to be levied on your property or obtained against you, or fail to observe or perform any of your obligations under the Contract or any other contract between us and you, or you are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade; or
20.3.3 you encumber or in any way charge any of the Goods.
20.4 We shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from us.
20.5 You grant us, our agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where your right to possession has terminated, to recover them.
20.6 Where we are unable to determine whether any Goods are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
21. Limitation of Liability to Businesses
21.1 Subject to Condition 3 and Condition 7, the following provisions set out our entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of:
21.1.1 any breach of these Conditions;
21.1.2 any use made or resale by you of any of the Goods, or of any product incorporating any of the Goods; and
21.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
21.2 Subject to the other provisions of these Conditions we shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by our negligence), nor shall any delay entitle you to terminate or rescind the Contract unless such delay exceeds 180 days.
21.3 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
21.4 Nothing in these Conditions excludes or limits our liability:
21.4.1 for death or personal injury caused by our negligence; or
21.4.2 under section 2(3) of Consumer Protection Act 1987; or
21.4.3 for any matter which it would be illegal for us to exclude or attempt to exclude our liability; or
21.4.4 for fraud or fraudulent misrepresentation.
21.5 Subject to Condition 21.3 and Condition 21.4:
21.5.1 our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the goods under the Contract; and
21.5.2 we shall not be liable to you for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
22. Product Liability & Insurance
22.1 Subject to you fulfilling all the conditions in this Condition 22, we shall indemnify you against any liability incurred by you in respect of damage to property, death or personal injury arising from any fault or defect in the materials or workmanship of the Goods and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability ("Relevant Claim"), except to the extent the liability arises as a result of your (or a third party's) action or omission or the act.
22.2 You shall, as soon as you become aware of a matter which may result in a Relevant Claim:
22.2.1 give us written notice of the details of the matter;
22.2.2 give us access to and allow copies to be taken of any materials, records or documents as we may require to take action under Condition 22.2.3;
22.2.3 allow us the exclusive conduct of any proceedings and take any action that we direct to defend or resist the matter, including using professional advisers nominated by us; and
22.2.4 not admit liability or settle the matter without our written consent.
22.3 For a period of 2 years commencing on the date that the Goods are delivered we shall maintain product liability insurance with a reputable insurer of no less than £2,000,000 for any one occurrence for any and all liability (how ever arising) for a claim that the Goods are faulty or defective. We shall provide a copy of the insurance policy and proof of payment of the current premium to you on request.
22.4 You undertake to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Goods or batches of Goods from the retail or wholesale markets. These records shall include records of deliveries to customers (including batch numbers, delivery date, name and address of customer, telephone number, fax number and e-mail address).
22.5 You shall, at our cost, give any assistance that we shall reasonably require to recall, as a matter of urgency, Goods from the retail or wholesale market.
May 2009