Medical Equipment Supplies & Management Ltd. Terms & Conditions

Medical Equipment Supplies and Management Ltd

General Terms and Conditions of Purchase

1. INTERPRETATION
1.1 In these Conditions the following expressions have the following meaning unless the context otherwise requires:

"Business Day"	means a day (other than a Saturday, Sunday or public holiday) when UK clearing banks in the City of London are open for general business;
"Business Hours"	means 9:00 to 17:00 on a Business Day;
"Buyer"	means Medical Equipment Supplies and Management Ltd (registered in England and Wales with Company Number: 06317167), whose registered office is at The Solutions Hub, Chorley, Lancashire, PR7 7EL;
"Buyer's Products"	means the Products other than the Supplier's Products which are bespoke or custom-made products and which are to be manufactured in accordance with a Specification provided by or on behalf of the Buyer;
"Conditions"	means the terms and conditions set out in this document and as amended from time to time in accordance with clause 14.2;
"Contract"	means the agreement between the Buyer and the Supplier for the sale of the Products and/or supply of Services in accordance with these Conditions;
"Delivery Address"	means the address to which the Supplier shall deliver the Products and/or perform the Services as set out in the Purchase Order Form or such other location as instructed by the Buyer prior to Delivery;
"Delivery Date"	means the date on which the Supplier shall deliver the Products and/or perform the Services as specified on the Buyer's Purchase Order Form;
"Delivery Schedule"	means the schedule, if any, signed by the parties from time to time and specifying the quantities of Products to be delivered during any extended period specified in it and the dates for their delivery;
"Local Regulations"	all laws, enactment, statutes and regulations in force in the Territory at the date of the Contract and any amendments thereof;
"Packaging"	means the boxes or other packaging in which the Products are supplied to the Buyer's customers;
"Price"	means the price of the Products and/or the charge for the Services which shall be detailed on the Purchase Order Form;
"Products"	means the Buyer's Products and/or the Supplier's Products (or any part of them) as set out in the Buyer's Purchase Order Form to be supplied to the Buyer by the Supplier;
"Purchase Order Form"	means the form or other document upon which the Buyer sets out its order for the Products;
"Services"	means the services which the Supplier is to supply to the Buyer in accordance with the Contract;
"Specification"	any specification for the Products, including any related plans and drawings, that is agreed in writing by the Buyer and the Supplier;
"Supplier"	means the person who agrees to sell the Products and/or supply the Services to the Buyer subject to these Conditions;
"Supplier's Products"	means the Products other than the Buyer’s Products which the Supplier is to supply to the Buyer in accordance with the Contract which are in all material respects made to the Supplier's standard designs;
"Territory"	the United Kingdom and/or the country in which the Delivery Address is situated and/or the country to which the Buyer notifies the Supplier that the Products will be used by the Buyer's customers.

1.2 Construction. In these Conditions, the following rules apply:

(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 or permitted assigns.

(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written includes and e-mails.

2. BASIS OF PURCHASE

2.1 These Conditions apply to all Contracts for the purchase of goods and/or the acquisition of services entered into by the Buyer, and the Supplier agrees to deal with the Buyer on the basis of these Conditions to the exclusion of all other terms, conditions, warranties, or representations with the exception of any terms specified in writing, overleaf in the Buyer's Purchase Order Form, or in the Delivery Schedule, in each case, such terms must be accepted by the Buyer in writing.

2.2 The Buyer's employees or agents are not authorised to make any representations concerning the supply of Products and/or mode of supply of services unless authorised in writing by the Buyer.

2.3 Any typographical, clerical or other error or omission in any offer, order or other document or information including but not limited to the Buyer's Purchase Order Form issued by the Buyer shall be subject to correction without any liability on the part of the Buyer.

3. PURCHASE AND REQUISITION

3.1 The Buyer agrees to purchase the Products and/or the Services from the Supplier and the Supplier agrees to sell the Products and/or supply the Services to the Buyer. The Buyer’s order constitutes an offer by the Buyer to purchase the Products and/or the Services in accordance with these Conditions and 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.

3.2 The Supplier shall comply with all applicable statutory and regulatory and any other legal requirements (including but not limited to any Local Regulations) concerning the manufacture, Packaging, packing, handling, sale and delivery of the Products and/or the performance of Services.

3.3 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits required to carry out its obligations under the Contract.

3.4 The Supplier shall not unreasonably refuse any request by the Buyer to inspect and test the Products during the manufacture, processing or storage of the Products at the premises of the Supplier or of any third party prior to despatch, and the Supplier shall provide the Buyer with all facilities and equipment reasonably required for inspection and testing.

3.5 If, as a result of inspection or testing in accordance with clause 3.4, the Buyer is not satisfied that the Products will comply in all respects with the requirement of clause 3.2 the Supplier's undertakings at clause 8.1, the Buyer's Purchase Order Form and the Specification and the Buyer so informs the Supplier, the Supplier shall take such steps as are necessary to ensure compliance.

3.6 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Products and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract, and the Buyer shall have the right to conduct further inspections and tests after the Supplier has carried out the remedial actions required pursuant to clause 3.5.

3.7 The Buyer's Products shall be marked in accordance with the Buyer's instructions and supplied in such Packaging as the Buyer specifies in writing in the Buyer's Purchase Order Form or otherwise.

3.8 The Supplier shall be entitled to amend the design or specification of any of the Products if required by any statutory or regulatory requirement (including, but not limited to, the Local Regulations). The Supplier shall notify the Buyer as soon as it becomes aware that it is required to make full and detailed amendment and shall supply to the Buyer such information regarding the modification.

4. DELIVERY

4.1 The Supplier shall ensure that:

(a) the Products are properly packed and secured and protected in such a manner as to enable them to reach the Delivery Address in good condition;

(b) each delivery of the Products is accompanied by a delivery note which shows the date of the Purchase Order Form, the order number (if any), the type and quantity of the Products (including the serial/code number of the Products, if applicable), special storage instructions (if any) and, if the Products are being delivered by instalment, the outstanding balance of Product remaining to be delivered and any other invoices, advice notes or other documentation as the Buyer may require from time to time;

(c) if the Supplier requires the Buyer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note, provided always that any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.2 The Supplier shall, (unless notified in writing by the Buyer that the Buyer intends to make other arrangements for the carriage of the Products) deliver the Products to the Buyer and/or perform the Services for the Buyer:

(a) at the Delivery Address;

(b) on the Delivery Date;

(c) during the Buyer's Business Hours and time of delivery and the performance by the Supplier shall be of the essence of the Contract.

4.3 If, in any case, the parties agree in advance that the Supplier shall be entitled to deliver the Products in instalments, then upon any default or breach by the Supplier in respect of any such instalment the Buyer at its option shall be entitled to:

(a) cancel any other instalment or instalments; and/or

(b) treat the Contract as a whole as repudiated; and/or

(c) waive the default or breach and treat the Contract as continuing provided that such waiver shall in no way effect the Buyer's right later to exercise its rights under sub-clauses 4.3(a) or 4.3(b).

4.4 The Buyer shall not be deemed to have accepted any Products until:

(a) the Buyer has had reasonable time to inspect the Products following actual delivery of the Products and in any event no earlier than 10 Business Days following actual delivery of the Products at the Delivery Address; or

(b) within a reasonable time after any latent defect in the Products has become apparent.

4.5 If the Supplier:

(a) delivers less than 95% of the quantity of Products ordered, the Buyer may reject the Products; or

(b) delivers more than 105% of the quantity of Products ordered, the Buyer may at its discretion reject the Products or the excess Products,

and any rejected Products shall be returnable at the Supplier's risk and expense. If the Supplier delivers less than the quantity of Products ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Products.

4.6 If the Products are not delivered on the Delivery Date as referred to in clause 4.2(b), or do not comply with the undertakings set out in clause 8.1, then, without limiting any of its other rights or remedies, the Buyer shall have the right to any one or more of the following remedies, at the Buyer's sole option, whether or not it has accepted the Products:

(a) to terminate the Contract;

(b) to reject the Products (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 Products, or to provide a full refund of the price of the rejected Products (if paid);

(d) to refuse to accept any subsequent delivery of the Products which the Supplier attempts to make;

(e) to recover from the Supplier any costs incurred by the Buyer in obtaining substitute goods from a third party; and

(f) to claim damages for any other costs, loss or expenses incurred by the Buyer which are in any attributable to the Supplier's failure to carry out its obligations under the Contract.

4.7 The Buyer shall not be obliged to return to the Supplier or pay for any packing materials for the Products whether or not any Products are accepted by the Buyer.

5. INSTALLATION AND SERVICES

5.1 If the Supplier is to install the Products then, immediately after their delivery, the Supplier shall install them at the Delivery Address.

5.2 The Buyer shall give reasonable access to the Delivery Address to the Supplier for the purpose of installing the Products and/or performing the Services and shall undertake such reasonable preparatory work as is specified by the Supplier in writing prior to entering into the Contract.

5.3 The Supplier shall procure that its employees and agents who install the Products and/or perform the Services comply with all safety, security and other regulations (including, but not limited to, any Local Regulations) which are in force or apply at the Delivery Address, and the Supplier shall indemnify the Buyer against any loss which the Buyer may suffer or incur as a result of their failing to do so.

6. PRICE AND PAYMENTS

6.1 The Price shall be inclusive of the Supplier's charge for transport, packaging, packing, insurance, delivery and any customs or other duties provided that where the Buyer makes its own arrangements for the carriage of and/or packaging for the Products this shall be deducted from the Price.

6.2 The Supplier shall be responsible for obtaining and payment of any necessary import licences or permits necessary for the entry of the Products into the United Kingdom, or into such other country or region as the Delivery Address.

6.3 The Price is exclusive of any applicable UK value added tax ("VAT"), which the Buyer shall be additionally liable to pay to the Supplier subject to receipt of a VAT invoice.

6.4 The Supplier shall be entitled to invoice the Buyer for all amounts due under the Contract on or at any time after the delivery of the Products, their installation and/or performance of the Services whichever is the latest. Each invoice shall quote the Buyer's purchase order number and part number for each of the Products (if applicable).

6.5 The Buyer shall make payment to the Supplier in respect of each undisputed invoice correctly rendered by the Supplier by the end of the month following the month in which the Buyer actually received the invoice.

6.6 The Buyer may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier against any amounts payable by it to the Supplier under the Contract.

7. PUBLICITY

The Supplier shall refer to neither the Buyer's name nor the Contract (or any of the terms contained therein) for advertisement or publicity or otherwise without the Buyer's prior express written consent.

8. WARRANTY AND LIABILITY

8.1 The Supplier warrants to the Buyer that for a period of 14 months from the date upon which the Products are actually received by the Buyer at the Delivery Address the Products:

(a) will be of merchantable and 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;

(b) will be free from defects in design, material and workmanship;

(c) will correspond with any relevant specifications, drawings, samples or descriptions provided by or to the Supplier; and

(d) will comply with all statutory and regulatory requirements (including but not limited to any Local Regulations) relating to the manufacture, labelling, packaging, storage, handling and delivery of the Products.

8.2 If the Products are to be installed by the Supplier, the Supplier warrants to the Buyer that they will be installed by appropriately qualified and trained personnel with due care and diligence and to such standard as is reasonable for the Buyer to expect in all the circumstances.

8.3 The Supplier warrants to the Buyer that the Services will be performed:

(a) with reasonable care and skill;

(b) in accordance with any relevant specifications, drawings or descriptions provided by or to the Supplier; and

8.4 The Supplier shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with its acquisition of the Products and/or Services including in particular but without limitation:

(a) breach of any warranty given by the Supplier including but not limited to the warranty given at clause 8.1;

(b) any claims made against the Buyer that the Products actually or allegedly infringe, or their importation, use or resale infringes, and/or that the supply of the Services infringes the patent, copyrights, design rights, trade mark or other intellectual property rights of any other person or that the manufacture or supply of the Products and/or supply of the Services misuses, any confidential information belonging to any other person, except to the extent that the claim arises from compliance with any specifications supplied by the Buyer;

(c) any claim made against the Buyer by a third party arising out of, or in connection with, the supply of the Products, 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 sub-contractors;

(d) any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Supplier, its employees, agents or sub-contractors; and

(e) any act or omission of any of the Supplier's personnel in connection with the performance of the Services.

8.5 The Supplier shall take out and maintain full force and effect with a reputable insurer, insurance against all insurable liabilities under this clause 8, and if requested to do so by the Buyer shall promptly provide a copy of such insurance to the Buyer together with information and documentation evidencing that all premiums have been paid.

9. THIRD PARTY CLAIM

9.1 The Supplier shall at its expense, defend any action against the Buyer by any other person in respect of a claim as specified in clause 8.4(b) above ("Claim").

9.2 If a Claim is successful or the Buyer considers that it is likely to be successful, the Supplier shall use its best endeavours to procure for the Buyer the right to continue using the relevant Products or modify them so they are non-infringing.

10. RISK AND TITLE

Title and risk in the Products shall pass to the Buyer on completion of delivery of Products.

11. TERMINATION

11.1 The Buyer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Buyer shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any indirect or consequential losses.

11.2 The Contract shall continue in full force and effect in respect of Products already delivered or paid for by the Buyer and/or in respect of Services already performed or paid for by the Buyer and the Supplier shall, if so required by the Buyer, complete and deliver any partially completed Products, notwithstanding the Buyer having indicated that it wishes to cancel its order to purchase any of the Products and/or acquire any of the Services.

11.3 The Buyer may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier becomes subject to any of the following events:

(a) the Supplier commits a material breach of the Contract or commits a remediable breach of the Contract which is not remedied by the Supplier with 30 days of the Buyer giving the Supplier notice 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) 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 an individual) the Supplier is the subject of a bankruptcy petition or order;

(f) 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;

(g) (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;

(h) (being a company) a floating charge holder over the Supplier's assets has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the Supplier's assets or a receiver is appointed over the Supplier's assets;

(j) 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 11.3(a) to clause 11.3(i) inclusive;

(k) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or substantially the whole of its business;

(l) the Supplier's financial position deteriorates to such an extent that in the Buyer's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(m) (being an individual) the Supplier dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

11.4 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

12. BUYER'S PROPERTY

The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by the Buyer to the Supplier ("Buyer Materials") and all rights in the Buyer's materials are and shall remain the exclusive property of the Buyer. The Supplier shall keep the Buyer Materials in safe custody at its own risk, maintain them in good condition until returned to the Buyer, and not dispose or use the same other than in accordance with the Buyer's written instructions or authorisation.

13. REMEDIES

The remedies available to the Buyer under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Supplier.

14. VARIATION AND WAIVER

14.1 The failure of the Buyer to enforce or to exercise, at any time or for any period of time, any term of or right arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect the Buyer's right to enforce or exercise it.

14.2 Any variation of the Contract must be in writing and signed by or on behalf of the Buyer, by an authorised representative.

15. SEVERABILITY

The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract, shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.

16. THIRD PARTY RIGHTS

A person who is not a party to the Contract shall not have any rights under or in connection with it and the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract.

17. NOTICES

17.1

(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 the address stated on the Purchase Order Form, or where no such address is stated, its registered office (if it is a company) or its principal place of business (in any other case) 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, (if the notice is to be served by post outside the country from which it is sent) sent by airmail requiring signature on delivery, sent by pre-paid first class post, recorded delivery, commercial courier or e-mail].

(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 17.1(a); if sent by airmail to an international destination, at 9.00am on the fifth Business Day after posting; if sent by pre-paid first class post or recorded delivery from an address within the United Kingdom and to an address within the United Kingdom, 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, provided that the email is sent to the correct address, the email is not recalled by the sender and the sender does not receive notification of non delivery.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18. ASSIGNMENT

The Contract is personal to the Supplier and the Supplier shall not assign, transfer or otherwise part with the Contract or any right or obligation under it without the Buyer's prior consent.

19. FORCE MAJEURE

19.1 Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract.

19.2 If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than 20 Business Days, the Buyer may terminate this Contract immediately by giving written notice to the Supplier.

20. HEADINGS

Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.

21. LAW AND JURISDICTION

The Contract and any dispute or claim arising out of, or in connection with it or its subject matter or formations (including non-contractual disputes or claims) shall be interpreted in accordance with and governed by the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales. Nothing in this clause 21 shall prevent the Buyer from taking proceedings against the Supplier in any other jurisdiction.