5. The Goods

• The quantity and description of the Goods shall be as set out in the Order.
• The Goods shall be supplied in accordance with the description in the Order. The Company may from time to time make changes to the specification(s) of the Goods, which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
• The specifications and designs of the Goods (including the copyright, design right and other intellectual property in them) shall as between the parties be and remain the property of the Company.
• The Customer undertakes not to use any trademarks or trade names applied by the Company to the Goods, nor do or permit anything to be done where by the good will or reputation of such trademarks or trade names may be prejudiced or damaged.
• All samples must be clearly identified as such, and the Customer must not sell any Samples to any third party.

6. Delivery

• Subject to the conditions 4.2 and 6.2, delivery of the Goods shall be made to the delivery address specified in the Order normally within 30 days or as stated on the Pro Forma Invoice whichever is greater after the date of the Company’s acceptance of the Order.
• The Company reserves the right to with hold delivery of any Goods if any sum due to the Company under any contract with the Customer is overdue or if, in the reasonable opinion of the Company, the financial standing of the Customer has been impaired for any other reason.
• Time of delivery shall not be of the essence and, subject to condition 8.6; the Company shall not be liable for any loss or damage whatever due to any failure by the Company to deliver the Goods (or any of them) promptly or at all.
• The Company may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the Contract. Each installment shall be a separate Contract and no cancellation or termination of anyone Contract relating to an installment shall entitle the Customer to repudiate or cancel any other Contractor installment.
• The Customer shall take delivery of the Goods promptly whenever they are tendered for delivery (which shall include signing the relevant delivery note).If, for any reason, the Customer fails to take such delivery of the Goods or otherwise causes or requests a delay in delivery:
  • The Goods shall be deemed to have been delivered;
  • Risk in Goods shall pass to the Customer; and
  • The Company shall be entitled to store or arrange for the storage of the Goods until actual delivery, and charge the Customer for the reasonable costs (including insurance) of such storage and any additional charges incurred in delivering the Goods at a later date.
• The Customer shall ensure that adequate and safe facilities and procedures exist at the Customer’s premises for the delivery of the Goods.
• The Customer shall immediately notify the Company’s Customer Support Centre if the Goods are not received within 30 days of receipt of the invoice.
  • Acceptance of the Goods
• Subject to condition 6.9, the Customer shall be deemed to have accepted the Goods seven days after the date of delivery to the Customer. After acceptance, the Customer shall not be entitled to reject Goods which are not in accordance with the terms of the Contract and the Company shall have no liability whatsoever to the Customer in respect of the Goods.
• The Customer must notify to the Company’s Customer Support Centre any alleged defect, shortage in quantity, damage, loss or failure to comply with description within seven days of receipt and hold the Goods for inspection by the Company.
  • Return of the Goods
• Any requests to return Goods must be made to the Company’s Customer Support Center within fifteen days after the date of delivery of the Goods to the Customer. Goods which have specialist storage requirements or short expiry dates will not be accepted for return.
• If the company agrees to accept any Goods for return, the Company will issue a “return reference number” and the Customer shall be liable to pay a handling charge of 20% of the price. No return will be accepted after 20 days. Custom-made, made to order, color-coded, etched, and specially sourced instruments are non-returnable. Instruments that have been used/sterilized are also non-returnable. All products being returned should be sent in their original unopened packaging. All Goods must be returned to the Company carriage-paid. The Customer must provide the Company with proof of carriage. For the avoidance of doubt, the Goods shall be at the Customer’s risk until return delivery is accepted by the Company.
• Goods returned without the prior written approval of the Company may be returned to the Customer at the absolute discretion of the Company.
  • Recall of the Goods
• In the event that any Goods are subject to be called by the Company, the Customer shall provide to the Company as much information as is reasonably possible regarding the whereabouts of the Goods.

 7. Title and Risk

• The Goods shall be at the Customer’s risk at the time of delivery, unless the parties have agreed in writing that the Goods are to be collected from the Company’s premises, in which case, the Goods shall be at the Customer’s risk when the Company notifies the Customer that the Goods are available for collection.
• Property in the Goods shall not pass from the Company until:
  • The Customer has paid the price in full; and
  • No other sums whatsoever are due from the Customer to the Company.
• Util property in the Goods passes to the Customer in accordance with the condition 7.2, the Customer shall:
  • Hold the Goods on a fiduciary basis as bailed for the Company;
  • Store the Goods separately from all other goods in its possession and mark them in such a way that they are clearly identified as the Company’s property; and
  • Maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price.
• The Customer may sell at full market value or use the Goods only in the ordinary course of the Customer’s business. Any such sale or dealing shall be a sale or use of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Company, the proceeds of sale or otherwise of the Goods, to the full extent of the price of the Goods, shall be held in trust for the Company and shall not be mixed with other money or paid In to any over drawn bank account and shall be at all material times identified as the Company’s money.
• The Company shall be entitled to recover the price not withstanding that property in any of the Goods has not passed from the Company.
• Until such time as property in the Goods passes from the Company, if the Customer:
  • Enters into liquidation or has a winding up order made against it or has an administrator, receiver or manager appointed in respect of its assets; or
  • Fail to make payment in accordance with these conditions, the Customer shall upon request deliver up to the Company such of the Goods as have not ceased to be in existence or resold. If the Customer fails to do so, the Company may enter upon any premises owned. Occupied or controlled by the Customer where the Goods are situated and repossess the Goods.
• The Customer shall not pledge or in any way charge by way of security for any indebtedness, any of the Goods which are the property of the Company. If the Customer does so, all sums whatever owing by the Customer to the Company shall forth with become due and payable.
• On termination of the Contract, howsoever caused, the Company’s rights contained in this condition 7 shall remain in effect.

 8. Warranties and Liability

• Subject as expressly provided in the Contract, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
• Subject as expressly provided in the Contract, all terms and conditions, warranties and representations (whether implied or made expressly) whether by the Company, its servants or agents or otherwise relating to the quality and /or fitness for the purposes of the Goods are excluded to the fullest extent permitted by the law.
• The Company shall be under no liability in respect of any damage arising from fair wear and tear. Fire or accident, will full damage, negligence, abnormal working conditions, failure to follow the Company’s instructions. Misuse [or unauthorized installation, alteration or repair] of the Goods. The Customer must pass the Company’s instructions on to any purchasers or potential users of the Goods.
• The Customer shall indemnify the Company for any losses incurred by the Company in respect of any claim brought for:
  • Use of Goods by the Customer in breach of section 6 of the Health and Safety at Work Act etc 1974 or any other relevant safety legislation; or
  • Infringement of any patent, copyright or other third party intellectual rights relating to the Goods by the customer.
• The Company shall not be liable to the Customer for any indirect or consequential losses (including indirect loss of profit, loss of use, loss of production, loss of business, loss of business opportunity, loss of business revenue and loss of good will) arising under or in connection with the Contract.
• Subject to the condition 8.8, when any valid claim in respect of the Goods is notified to the Company in accordance with these conditions, the Company shall be entitled to repair or replace the Goods (or the part in question) or, at the Company’s sole discretion, refund to the Customer the price of the Goods (or proportionate part of the price), and the Company shall have no further liability to the Customer.
• Subject to the condition 8.8, the entire liability of the Company arising under or in connection with the performance of the Contract howsoever arising shall not exceed £5,000,000 (in line with the NHS Purchasing and Supply Agency conditions of contract for the purchase of goods).
• Nothing in these conditions shall exclude or limit the liability of the Company for death or personal injury caused by the Company’s negligence, fraud or fraudulent misrepresentation, or any other matter in relation to which it would be illegal for the Company to exclude or attempt to exclude its liability.

9. Force Majeure

• The Company shall not be responsible for any failure to fulfill its obligations under these conditions and/or in relation to the Goods if such failure is caused by an event which is beyond its reasonable control including acts of God, war, armed conflict, acts of terrorism, riot, strikes, industrial action (including action involving the Company’s employees), fire, flood, any natural disaster, any defaults by the Company’s suppliers or subcontractors, difficulties obtaining workmen or materials, and breakdown of machinery.
• If such event continues for more than one month, the Company may terminate the Contract without liability.

10. Assignment

• The Company may assign the Contractor any part of it to any company, firm or organization.
• The Customer shall not be entitled to assign the Contractor any part of it without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed).

11. Export

• Where the Customer intends to export the Goods from the United Kingdom, the Customer shall be responsible for obtaining all necessary licenses and complying with all applicable legislation and regulations governing the export of the Goods from the United Kingdom and the importation of the Goods into the country of destination and shall be responsible for the payment of all duties on the Goods.

12. Miscellaneous

• All communications between the parties about the Contract shall be in writing and delivered by pre-paid first class post or by hand to the party’s registered office, principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice. In the absence of evidence of earlier receipt, any notices shall be deemed to be duly served:
  • If sent by first class post, two working days after posting; or
  • If delivered personally, when left at the relevant address.
• Save as required to be disclosed by law:
  • Where the Customer is an NHS body, both parties, their employees and agents shall at all times keep confidential and secret and shall not disclose to any person the price or specification relating to the Goods (unless otherwise published): or
  • Where the Customer is not an NHS body, both parties, their employees and agents shall at all times keep confidential and secret and shall not disclose to any person any information, materials or documents acquired in connection with the Contract which concerns the other party, its employees or business, Unless otherwise disclosed other than due to a failure of the relevant party to comply with the Contract. On termination of the Contract, howsoever caused, the parties’ obligations contained in this condition 12.2 shall remain in effect.
• Neither party, its employees or agents shall offer, give or agree to give to any person any gift or consideration of any kind as an inducement or reward for doing or for bearing to do, or for having done or for borne to do, any action in relation to the obtaining or execution of any contract with the other party.
• Each right or remedy of the Company under these conditions is without prejudice to any other right or remedy of the Company.
• On termination of the Contract, howsoever caused, all obligations which are expressed to remain in effect shall survive termination of the Contract, together with such conditions the survival of which is implied or is necessary for the interpretation or enforcement of the Contract.
• A person who is not a party to the Contract shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of such contract.
• If any provision of the Contract is held 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 to be severable and the remaining provisions of the Contract and the remainder of the provision shall continue in full force and effect.
• No waiver or forbearance by the Company (whether express or implied) in enforcing any of its rights under these conditions shall prejudice its right to do so in the future.
• These conditions are subject to the law of England and Wales. All disputes arising in relation to these conditions or the Contract shall be subject to the exclusive jurisdiction of the courts of England and Wales.