In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.5.
Contract: the contract between the Customer and the Supplier for the sale and purchase of the Goods and/or Services in accordance with these Conditions.
Customer: Ideal Medical Solutions Limited (registered in England and Wales with company number 07777751).
Customer Materials: shall have the meaning set out in clause 5.3(j).
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks / service marks, business names, domain names, rights in get-up / trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form.
Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Specification.
Specification: any specification for the Goods and/or Services agreed in writing by the Customer and the Supplier (including, where applicable, any related plans or drawings).
Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.
2. Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Order; and
(b) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence (Commencement Date).
3. The Goods
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
(c) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after Delivery; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.3 The Customer shall have the right to inspect and test the Goods at any time before delivery.
3.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order, or, if no such date is specified, within 28 days of the date of the Order (Delivery Date);
(b) to the Customer’s premises at Ideal Medical Solutions, Unit B, Longmead Industrial Estate, 1 Blenheim Road, Epsom, Surrey KT19 9AP or such other location as is set out in the Order, or as instructed by the Customer prior to delivery (Delivery Location); and
(c) during the Customer’s normal business hours, or as instructed by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.
4.5 Title and risk in the Goods shall pass to the Customer on completion of delivery.
5. Supply of Services
5.1 The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to the Customer in accordance with the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier and time is of the essence in relation to any of those performance dates.
5.3 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
(b) perform the Services with care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services,;
(i) observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;
(j) hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation;
(k) not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services; and
(l) comply with any additional obligations as set out in the Service Specification.
6.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3.1, or the Supplier fails to perform the Services by the applicable date, then, without limiting any of its other rights or remedies, the Customer shall have the right to any one or more of the following remedies, (whether or not it has accepted the Goods):
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods and/or performance of Services which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
(f) to require a refund from the Supplier of sums paid in advance for Services the Supplier has not provided and/or goods that it has not delivered; and
(g) to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
6.2 These Conditions shall apply to any repaired or replacement Goods, or any substituted or remedial services supplied by the Supplier.
6.3 The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
7. Customer Obligations
7.1 The Customer shall:
(a)Provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purposes of providing the Services; and
(b) Provide such necessary information for the provision of the Services as the Supplier may reasonably request.
8. Title and Risk
Title and risk in the Goods shall pass to the Customer on completion of delivery.
9. Price and Payment
9.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the Commencement Date.
9.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
9.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT), but includes the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.
9.4 The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.
9.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. In respect of Services the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include supporting information required by the Customer to verify its accuracy, including, but not limited to, the relevant purchase order number.
9.6 The Customer shall pay correctly rendered invoices within 30 days of receipt of the invoice, or such other timescale agreed with the Supplier. Payment shall be made to the bank account nominated in writing by the Supplier.
9.7 The Supplier shall maintain complete and accurate records of time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records on reasonable request.
9.8 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
10. Intellectual Property Rights
10.1 The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables).
10.2 At its own expense, the Supplier shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement, including securing for the Customer all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Customer in accordance with clause 10.1.
10.3 The Supplier shall obtain waivers of any moral rights in the products of the Services (including the Deliverables) to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
10.4 All Customer Materials are the exclusive property of the Customer.
11.1 The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
(a) any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods or the Deliverables, to the extent that the defects in the Goods and/or Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
11.2 This clause 11 shall survive termination of the Contract.
During the term of the Contract and for a period of five years thereafter the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
13.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
13.2 This clause 13 shall survive termination of the Contract.
14.1 Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier 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 that party being notified in writing to do so;
(b) the Supplier suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Supplier is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(d) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier, other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(e) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier;
(f) (being a company) the holder of a qualifying floating charge over the Supplier’s assets has become entitled to appoint or has appointed an administrative receiver;
(g) a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(h) a person becomes entitled to appoint a receiver over the Supplier’s assets or a receiver is appointed over the Supplier’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(b) to clause 14.1(h) inclusive;
(j) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(k) the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15. Consequences of Termination
15.1 On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
15.2 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
15.3 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
16. Force Majeure
16.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from an event, circumstance or cause beyond its reasonable control (Force Majeure Event).
16.2 The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
16.3 If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 120 Business Days, the Customer may terminate the Contract immediately by giving written notice to the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail firstname.lastname@example.org.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.1(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
17.2 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.3 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.4 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
17.5 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Customer.
17.6 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
17.7 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).