During the continuance of the Agreement into which this document is incorporated (the “Agreement”), Defib Sales and Training Ltd shall supply and the Purchaser shall purchase subject to these Defib Sales and Training Ltd Supply Terms. Definitions in the Agreement shall also apply in these Defib Sales and Training Ltd Supply Terms. In the event of any conflict between these Defib Sales and Training Ltd Supply Terms and the terms of the Agreement, the terms of the Agreement shall take precedence.
1.1 Goods and services
The Goods and/or Services, the Specifications, and the related Prices (as set out in the Defib Sales and Training Ltd Catalogues and Website as updated from time to time). Defib Sales and Training Ltd reserves the right to amend the Prices without notice (unless otherwise agreed in writing with the Purchaser). Unless an exempt supply, all Prices are subject to VAT which will be an additional charge and the responsibility of the Purchaser (the Purchaser to produce satisfactory evidence regarding the VAT status of any supply). If the cost of packaging, insurance and carriage are not specifically included in the Price, these will be additional charges and the responsibility of the Purchaser.
1.2 Defib Sales and Training Ltd catalogue & website
Details within Defib Sales and Training Ltd Website (including descriptions, illustrations, specifications, technical information etc.) are as supplied by manufacturers and should be used as guidance. Defib Sales and Training Ltd relies on the information provided by the manufacturers and (subject to the operation of law) provides no guarantee that any goods will conform exactly to such Catalogues and Website. The Purchaser must satisfy itself in relation to the suitability of any goods ordered. Defib Sales and Training Ltd reserve the right to amend the specification of products or withdraw products from, its Catalogues and Website at any time.
Unless stated otherwise, nothing in Defib Sales and Training Ltd Catalogues and Website should be taken as a representation of the origin of manufacture or production of any item (or any part thereof).
2.1 Purchaser's orders
No terms or conditions endorsed on a Purchaser’s order, specification, or similar document will form part of the contract between the parties. By placing an order, the Purchaser acknowledges acceptance of the Defib Sales and Training Ltd Supply Terms and the terms of the Agreement.
It may not be possible to despatch all the Goods ordered at the same time. Defib Sales and Training Ltd reserves the right to despatch separate items in instalments. Defib Sales and Training Ltd will use its reasonable endeavours to advise Purchasers of the anticipated despatch dates of the instalments and to deliver in accordance with anticipated despatch dates. However, Defib Sales and Training Ltd shall not be liable for the consequences of any failure to notify the Purchaser of anticipated despatch dates or any delay beyond the anticipated despatch date.
Defib Sales and Training Ltd and the Purchaser shall agree times and places for the performance of Services. Otherwise, Defib Sales and Training Ltd shall use its reasonable endeavours to perform them within a reasonable time in the circumstances.
2.4 Delivery Acceptance
Acceptance of delivery of any of the Goods or acceptance of performance of any of the Services shall be deemed further conclusive evidence of the Purchaser’s acceptance of these Defib Sales and Training Ltd Supply Terms and the terms of the Agreement.
2.5 Order termination
Failure to notify of any delay shall not on its own entitle the Purchasers to terminate the contract or withhold payment against Defib Sales and Training Ltd.’s invoice. Unless otherwise agreed in writing with Defib Sales and Training Ltd, the Purchaser shall not be entitled to cancel any order for Goods and/or Services once the first instalment of the Goods and/or the first performance of the Service has been despatched/performed by Defib Sales and Training Ltd.
2.6 Advance payments and credit references
Purchasers may be asked to make a payment in advance for goods and/or Services against Defib Sales and Training Ltd.’s pro-forma invoice or provide a suitable credit reference or such other proof of credit worthiness as Defib Sales and Training Ltd may require at its sole discretion before supply.
3.1 Payment procedure
Unless subject to separate agreed arrangements, the Purchaser shall pay Defib Sales and Training Ltd by pro forma invoice. If the Purchaser fails to make payment on the due date, Defib Sales and Training Ltd shall be entitled to charge the Purchaser interest at the annual rate of 3% above the base rate of HSBC Bank plc. Unless otherwise agreed with Defib Sales and Training Ltd or required by law, the Purchaser shall not be entitled to make any set off in respect of amounts due to Defib Sales and Training Ltd.
4.1 Delivery address information
Unless subject to separate arrangements agreed between an authorised representative of Defib Sales and Training Ltd and the Purchaser, the Purchaser may nominate one principal delivery address in the United Kingdom during the continuance of this Agreement. Deliveries to any other address may be subject to a minimum despatch quantity or additional charges.
4.2 Risks in goods
Risk in Goods shall pass to the Purchaser upon delivery of the same to the Purchaser or the Purchaser’s agents, or to a place of delivery nominated in writing by the Purchaser.
4.3 Ownership of the goods
Ownership of the goods remains with Defib Sales and Training Ltd until it receives payments in full by or on behalf of the Purchaser of all sums due. Property in the Goods shall pass to the Purchaser at the time when cleared funds are received by Defib Sales and Training Ltd (and not earlier). Until ownership of the Goods passes to the Purchaser, the Purchaser shall be the Bailee of the Goods for Defib Sales and Training Ltd and the Purchaser shall ensure that the goods can be identified and shall not incorporate them into another product.
4.4 Termination of the purchaser's order by Defib Sales and Training Ltd
Defib Sales and Training Ltd 's consent to the Purchaser’s possession of the Goods and any right the Purchaser may have to possession of the Goods shall cease at whichever is the earliest of the following events: If any sum due under the terms and conditions is not paid to Defib Sales and Training Ltd by or on behalf of the Purchaser on or before the date when it is due; If the Purchaser, not being a company, applies for an interim order or proposes voluntary arrangement with its creditors under Part VIII of the Insolvency Act 1986 or does or fails to do anything which would entitle a Petition for bankruptcy order to be presented; If the Purchaser, being a company, does or fails to do anything which would entitle any person to appoint a receiver of the whole or any part of the Purchaser’s assets or which would entitle any person to present a Petition for an administration order to the Winding Up of the Purchaser, or which would lead to a Voluntary Liquidation.
4.5 The reclamation of goods by Defib Sales and Training Ltd
Defib Sales and Training Ltd may for the purpose of inspecting or recovering the goods enter upon any premises where they are stored or where Defib Sales and Training Ltd reasonably believes them to be stored and may receive and remove them accordingly. The Purchaser agrees to co-operate with Defib Sales and Training Ltd accordingly and in the case of insolvency shall return Defib Sales and Training Ltd.’s goods to it upon request and/or allow them to be recovered by Defib Sales and Training Ltd.
5.1 Terms of confidentiality
Each party acknowledges and agrees that any and all information concerning the other’s business or the terms of the Agreement including these Defib Sales and Training Ltd Supply Terms is confidential (hereinafter referred to as “Confidential Information”) and each party agrees that it shall not permit the duplication, use or disclosure of any such Confidential Information to any person (other than its own employee, agent or sub- contractor where the same requires such information for the performance of the Agreement) unless such duplication, user or disclosure is specifically authorised in writing by the other party, or is required by the operation of Law. Confidential Information does not include information, which at the time of disclosure is generally known by the public (other than by the unauthorised act of the disclosing party). The parties shall take all reasonable steps to ensure that their employees, agents and sub-contractors keep Confidential Information confidential.
Each party undertakes to comply at all times with the Data Protection Act 1998 (the “DPA”) to the extent it processes any personal data or sensitive personal data on behalf of the other. “Personal data” and “sensitive personal data” shall have the meanings given in the DPA.
In particular, but without limitations, each party shall: only carry out processing of such data in accordance with the other’s instructions, only disclose it to or allow access to it by those of its employees (or agents or sub-contractors) who are familiar with data protection requirements and whose use of such data relates to their job or function; assist the other with all subject information requests received from data subjects.
For the avoidance of doubt, neither party (or its agents or sub-contractors) shall acquire any rights in any of the other’s personal data or sensitive personal data and shall only be entitled to process it in accordance with its contractual obligations. On termination of the contract each party (or its agents or sub-contractors) shall immediately cease to use the same and shall arrange for its safe return or destruction as shall be agreed with the other at the relevant time.
Each party agrees to indemnify the other against any action, costs, liabilities, losses, damages and expenses which the other may suffer or incur as a result of any breach by the former of any of the undertakings given in this Clause.
7.1 Ownership of intellectual property
Each party confirms that it owns, or has all necessary rights in the use of, all intellectual property in relation to the Goods and/or Services (and the related Catalogues/Website/literature) and each acknowledges that such intellectual property shall remain the property of, or the rights in the use of shall remain with the originating party, unless otherwise agreed in writing between the authorised representatives of Defib Sales and Training Ltd and the Purchaser.
Each party agrees to indemnify the other against any actions, costs, liabilities, losses, damages and expenses which the other may suffer or incur as a result of any claim by a third party in relation to ownership or use of any relevant intellectual property.
8.1 Force Majeure
Neither party will be liable to the other for any failure or delay or for the consequences of any failure or delay in performance of this Agreement if it is due to any event beyond the reasonable control and contemplation of a party to this Agreement including, without limitation, acts of God, war, industrial disputes, protests, fire, flood, storm, tempest explosion, an act of terrorism and national emergencies.
9.1 Warranties on goods
Defib Sales and Training Ltd warrants providing goods which in all material respects are fit for purpose and of satisfactory quality.
9.2 Warranties on services
Defib Sales and Training Ltd warrants to provide services with all the care and skill to be expected of a qualified and competent contractor experienced in undertaking services of the same kind as the Services.
9.3 Our replacement and repair provisions
If the goods supplied are in breach of Clause 9.1, Defib Sales and Training Ltd will at its option repair or replace (as detailed below) or refund the Purchaser the relevant Price. In the case of replacement, Defib Sales and Training Ltd will, subject to availability of stock, within a period of four weeks from the date of written notice from the Purchaser replace any goods which are proved to the reasonable satisfaction of Defib Sales and Training Ltd to contain defects in material or workmanship. This obligation will not apply where: the goods have been improperly altered in any way whatsoever, or have been subjected to misuse or unauthorised repair; or: in the case of their fitness for purpose, the Goods were produced in accordance with the Purchasers particular specification etc.; or the damage is due to reasonable wear and tear; or the Purchaser has failed to notify Defib Sales and Training Ltd of any defect or suspected defect within seven days of the delivery in question where the defect should be apparent on reasonable inspection or within 14 days of the same coming to the knowledge of the Purchaser where the defect is not one which should be apparent on reasonable inspection.
All returns must be accompanied by the original receipt and a receipt in respect of the re-delivery to Defib Sales and Training Ltd.
9.5 The replacement of faulty goods
The faulty Goods returned to Defib Sales and Training Ltd will then belong to Defib Sales and Training Ltd and any replacement Goods will belong to the Purchaser. Any replacement Goods will be subject to the same terms specified in Clause 9.1 and/or 9.3 following delivery.
9.6 The loss of goods
If goods are lost before the title has passed to the Purchaser, Defib Sales and Training Ltd will only be responsible if the Purchaser notifies Defib Sales and Training Ltd in writing within 10 days of the invoice date, of such loss or non-delivery.
9.7 Breach of services
If the Services performed are in breach of Clause 9.2, Defib Sales and Training Ltd will at its option make good the performance, re-perform the Service or refund the Purchaser the relevant Price, subject to availability and the performance being proved to be deficient to the reasonable satisfaction of Defib Sales and Training Ltd. These obligations will not apply where:
10.1 Distance selling
Where a contract with a consumer is concluded on a distance selling basis the Regulations (as amended from time to time) will apply and the Purchasing consumer will have a general right to cancel. In the case of goods this will expire 14 days after delivery and in the case of services this will expire 14 days after booking (except for late bookings when it will expire on the date the services are commenced). Subject to the Regulations and to the foregoing, if a request is made to amend services or to cancel services, the following fees may be applied:
10.1.1 Transfer request
In all cases, notice of cancellation must be confirmed in writing addressed Defib Sales and Training Ltd. In the case of goods, and before any refund can be provided, it is the Purchaser’s responsibility to ensure that the goods remain in satisfactory condition and to return them at their own expense.
10.2 Exchange and refund policies for non-consumer purchasers
Where a Purchaser as a non-consumer, is not fully satisfied with their purchase, they may (at Defib Sales and Training Ltd’s sole discretion) be provided with a refund or an exchange for another product, provided the original item is satisfactorily returned together with the original receipt within 60 days from delivery. In the case of their fitness for purpose, this discretion does not apply to items produced to the Purchaser’s particular specification etc.
11.1 Liability policies
Nothing in this contract excludes or limits or attempts to exclude or limit the liability of either party for death or personal injury caused as a result of its negligence, or for fraudulent misrepresentation, or in respect of the implied warranties contained in the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982.
Subject to Clause 11.1, Defib Sales and Training Ltd will be under no liability to the Purchaser whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss or profits, loss of business, depletion of goodwill and like loss) howsoever caused.
Subject to Clauses 11.1 and 11.2 Defib Sales and Training Ltd aggregate liability under this Agreement (whether in contract, tort (including negligence) breach of statutory duty, restitution or otherwise) for any damage or 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 like loss) howsoever caused will be limited to the amount paid for the Goods and/or Services concerned.
12.1 Notice procedure
Any demand notice or communication may be given by hand or sent by first class prepaid post of facsimile and shall be deemed to have been duly served if delivered by hand and when left at the address of the other, if given or made by prepaid first class post, 48 hours after being posted (excluding Saturday, Sunday and public holidays); if given or made by facsimile, at the time of transmission, provided that a confirming copy is sent by first class prepaid post to the other party within 24 hours after transmission.
13. Freedom of Information
13.1 Freedom of Information procedure
Where the Purchaser is a Public Authority as defined in the Freedom of Information Act 2000 (“the FOIA”) it agrees to notify Defib Sales and Training Ltd immediately that it receives any FOIA request for information regarding Defib Sales and Training Ltd or its business, and it agrees to consult with Defib Sales and Training Ltd regarding the application of any exemptions under the FOIA in relation to such request. Defib Sales and Training Ltd agrees to co-operate with the Purchaser in relation to the FOIA.
14.1 Dispute procedure
In the event of a dispute concerning the goods or services the parties shall use their reasonable endeavours to resolve it as soon as practicable. If they fail to do so within 14 days, the parties shall try to agree on and implement a method of dispute resolution. If they fail to agree such method within 14 days, the parties confirm that the dispute will then become subject to the exclusive jurisdiction of the English Courts.
15.1 Termination of an Agreement
The termination of this Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The clauses which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
The parties to the contract incorporating these conditions do not intend that any of its terms would be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
17.1 Rights and obligations
Neither party shall be entitled to assign or transfer any of its rights or obligations without prior written agreement of the other (which shall not be unreasonably withheld or delayed).
18.1 Waiver procedure
No failure or delay by a party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
19.1 Conditions for Agreement severability
If any clause or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other clause or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect.
20.1 Conditions for variation
This Agreement may only be varied or amended in writing and signed by the parties specifically referring to this clause and stating that this Agreement is varied in the manner specified.
21.1 Agreement content
The Agreement into which these terms and conditions are incorporated contain all the terms which the parties have agreed in relation to the subject matter of this Agreement. Nothing in this Clause shall be taken to exclude liability for fraudulent misrepresentation.
Nothing in this Agreement or any arrangement contemplated by it shall constitute either party a partner of the other nor shall the execution, completion and implementation of this Agreement confer on any party any power to bind or impose any obligation to any third parties on the other party or to pledge the credit of the other party.
23.1 Laws and regulation
Each party shall observe and abide by and shall require its sub-contractors to observe and abide by all laws, regulations and bye laws as may apply in relation to the matters contemplated by this Agreement.
24.1 Governing law and jurisdiction procedure
The formation, existence, construction, performance, validity and all aspects whatsoever of the Agreement or of any term of the Agreement will be governed by the Law of England and Wales and subject to Clause 14, the courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement.