Respirex International Limited - Terms and Conditions for the Supply of Goods
Conditions: the terms and conditions set out in this document, as they may be amended from time to time in accordance with clause 10.7.
Contract: the contract between Respirex and the Customer for the sale and purchase of the Goods on these Conditions.
Customer: the person who purchases the Goods from Respirex.
Customer’s Confirmation: the Customer’s written acceptance (including by email) of the Quotation (if any).
Customer’s PO: the Customer’s order for the Goods (if any), as set out in the Customer’s purchase order form.
Delivery Location: the location for delivery or collection (as applicable) of the Goods, as specified in the Quotation.
Description: the description of the Goods in Respirex’s catalogue, as modified by the Specification (if any).
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control, including non-performance by suppliers or sub-contractors.
Goods: the goods set out in the Customer’s PO or the Quotation (as applicable).
IA: the Insolvency Act 1986.
IPR: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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 Confirmation or the Customer’s PO (as applicable).
Other Contract: any other contract between the Customer and Respirex.
Price List: Respirex’s standard price list that is or will be (as the context requires) in force as at the date of delivery.
Quotation: Respirex’s quotation for the sale of goods to the Customer (if any).
Respirex: Respirex International Limited, incorporated and registered in England and Wales with company number 00592506.
Specification: the Customer’s specification for the Goods (if any) in the Quotation or the Customer’s PO.
Territory: the jurisdiction(s) in which: (a) the Customer’s registered office (if a company) or principal place of business (in any other case) is located; and (b) the Delivery Location is located.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to:
(a) a party includes its personal representatives, successors and permitted assigns;
(b) legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time;
(ii) includes all subordinate legislation made from time to time under that legislation or legislative provision;
(c) writing or written does not (except where the contrary is expressly provided) include fax or email;
(d) a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
(e) an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall – in respect of any jurisdiction other than England and Wales – be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
2. Basis of contract
2.1 These Conditions apply to the Contract (and, for the avoidance of doubt, to the sale and purchase of the Goods) to the exclusion of any other terms that the Customer seeks to impose or incorporate. Without prejudice to the foregoing:
(a) the Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer (including the Customer’s PO) that is inconsistent with these Conditions;
(b) subject to clause 5.1(a), any samples, drawings, descriptive matter or advertising produced by Respirex are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract, nor have any contractual force.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Quotation (including the Specification, where applicable) are complete and accurate.
2.3 Any quotation given by Respirex shall not constitute an offer.
2.4 The Order shall only be deemed to be accepted when Respirex issues a written acceptance of the Order (including by email), at which point the Contract shall come into existence.
3.1 The Customer represents and warrants that the Goods shall not, as a result of compliance with the Specification, infringe the IPR of any third party in the UK or the Territory.
3.2 Respirex reserves the right to amend the Goods and/or the Specification, if required by any applicable statutory or regulatory requirement. In such event, Respirex shall inform the Customer.
4.1 Respirex shall ensure that each delivery of the Goods is accompanied by a delivery note that shows:
(a) any and all relevant Customer and Respirex reference numbers;
(b) the type and quantity of the Goods (including the code number of the Goods, where applicable).
4.2 Where (as specified in the Customer’s PO or the Quotation, as applicable):
(a) Respirex is to deliver the Goods, at any time after Respirex informing the Customer that the Goods are ready for delivery, Respirex shall deliver the Goods to (and the Customer shall accept delivery of the Goods at) the Delivery Location; or
(b) the Customer is to collect the Goods, within five days of Respirex informing the Customer that the Goods are ready for collection, the Customer shall collect the Goods from (and Respirex shall make the Goods available for collection at) the Delivery Location.
4.3 Delivery is completed on the completion of unloading (in the case of delivery by Respirex) or loading (in the case of collection by the Customer) of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only and time of delivery is not of the essence.
4.5 Subject to clause 10.1, if the Customer fails to:
(a) in the case of delivery by Respirex, take delivery of the Goods:
(i) delivery of the Goods shall be deemed to have been completed at 09:00 (local time at the Delivery Location) on the day on which Respirex attempted to deliver the Goods to the Delivery Location; and
(ii) Respirex shall store the Goods until delivery takes place and charge the Customer for (and the Customer shall pay) for all related costs and expenses (including insurance);
(b) in the case of collection by the Customer, collect the Goods within five days of Respirex informing the Customer pursuant to clause 4.2(b) that the Goods are ready for collection:
(i) delivery of the Goods shall be deemed to have been completed at 09:00 (local time at the Delivery Location) on the day on which Respirex notified the Customer that the Goods were ready for collection; and
(ii) Respirex shall store the Goods until delivery takes place and charge the Customer for (and the Customer shall pay) for all related costs and expenses (including insurance).
4.6 If, 14 days after the day on which Respirex first attempted to deliver such Goods (in the case of delivery by Respirex) or informed the Customer that the Goods were ready for collection (in the case of collection by the Customer), the Customer has not (respectively) taken actual delivery or collected the Goods, Respirex may resell or otherwise dispose of some or all of the Goods and, after deducting reasonable storage and selling costs:
(a) account to the Customer for any excess over the price of the Goods; or
(b) charge the Customer for (and the Customer shall pay) any shortfall below the price of such Goods.
4.7 Respirex may deliver the Goods (or make the Goods available for collection) in instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 If the Supplier delivers up to 5% more or less than the quantity of Goods ordered, the Customer may not reject them but shall notify the Supplier in writing within seven days of delivery and the Supplier shall make a pro rata adjustment to the invoice for the Goods.
5.1 Respirex warrants that, on delivery and for a period of 12 months from the date of delivery (the Warranty Period), the Goods shall:
(a) conform in all material respects with their Description and the Specification (if any);
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by Respirex.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to Respirex during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) Respirex is given a reasonable opportunity to examine such Goods; and
(c) the Customer (if asked to do so by Respirex) returns such Goods to Respirex’s place of business (at the Customer’s cost),
Respirex shall (at its option) repair/replace any defective Goods or refund the price of any defective Goods in full.
5.3 Respirex shall not be liable for any Goods’ failure to comply with the warranty set out in clause 5.1 to the extent that:
(a) such failure was apparent (or would have been apparent, had a reasonable inspection been conducted):
(i) without removing such Goods from their individual sealed/airtight packaging and the Customer did not provide written notice of such failure within 14 days of delivery;
(ii) on removal of the Goods from their individual sealed/airtight packaging and the Customer did not provide written notice of such failure within 14 days of such removal;
(b) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2(a);
(c) the defect arises because the Customer failed to follow:
(i) Respirex’s oral or written (including by email) instructions as to the storage, commissioning, installation, use and maintenance of the Goods; and/or
(ii) good trade practice regarding storage, commissioning, installation, use and maintenance of the Goods;
(d) the Customer alters or repairs such Goods without the prior, written consent of Respirex;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) such Goods differ from their Description and/or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 These Conditions shall apply mutatis mutandis to any repaired or replacement goods supplied by Respirex, provided that – in respect of any such goods – the Warranty Period shall not be deemed extended.
6. Title and risk
6.1 Risk in the Goods shall pass to the Customer on completion of delivery in accordance with clause 4.3.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) Respirex receiving payment in full (in cash or cleared funds) for the Goods and any other goods that Respirex has supplied to the Customer under any Other Contract, in which case title to the Goods shall pass at the time of payment of all such sums; or
(b) the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4(b).
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Respirex’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Respirex immediately in writing if it becomes subject to any of the events listed in clauses 9.1(a)(iii) to 9.1(i) (inclusive); and
(e) immediately provide Respirex with such information as Respirex may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Respirex receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Respirex’s agent; and
(b) title to the Goods shall pass from Respirex to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, Respirex may:
(a) by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and/or
(b) require the Customer to deliver up all Goods in its possession that have not been resold (or irrevocably incorporated into another product) and, if the Customer fails to do so immediately, enter any premises of the Customer (or those of any third party where the Goods are stored) in order to recover them.
6.6 Respirex grants the Customer a limited right to use any IPR embodied in the Goods and/or the packaging for the Goods to the extent strictly necessary for the Customer’s:
(a) use of the Goods in the ordinary course of its business; and/or
(b) resale of the Goods in accordance with clause 6.4.
6.7 Subject to clause 6.6, Respirex makes no assignment of, or grants any licence to, any of its (or its third party licensors’) IPR.
7. Price and payment
7.1 The price of the Goods shall be the price set out in:
(a) the Quotation or the Customer’s PO; or
(b) where no price is set out in the Quotation or the Customer’s PO, the Price List.
7.2 Respirex may, by giving notice in writing to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) an increase in the Price List;
(b) any factor beyond Respirex’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(c) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Specification; or
(d) any delay caused by any instructions of the Customer or failure of the Customer to give Respirex adequate and accurate information and/or instructions.
7.3 The price of the Goods:
(a) excludes amounts in respect of VAT, which the Customer shall additionally be liable to pay to Respirex at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of insurance and transport of the Goods, which shall be invoiced to the Customer by Respirex at cost.
7.4 Respirex may invoice the Customer for the Goods on (or at any time after) delivery of the Goods.
7.5 The Customer shall pay each invoice submitted by Respirex:
(a) within 30 days of the date of the invoice or such longer period as:
(i) may be agreed by the parties in writing (including by email); or
(ii) Respirex has previously stated in writing (including by email) will apply to the Customer’s payment of Respirex’s invoices;
(b) in full and in cleared funds to a bank account nominated in writing (including by email) by Respirex.
7.6 Time for payment shall be of the essence of the Contract.
7.7 If the Customer fails to make a payment due to Respirex under the Contract by the due date, then (without limiting Respirex’s other rights and remedies, including under clause 9), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time but at 4% a year for any period when that base rate is below 0%.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
8.3 Subject to clause 8.2:
(a) Respirex shall not be liable for any delay in delivery or collection of the Goods that is caused by the Customer’s failure to provide Respirex with adequate and accurate information and/or instructions that are relevant to the supply of the Goods (for example, delivery instructions);
(b) where Respirex is to deliver the Goods (i.e. the Goods are not to be collected by the Customer), if Respirex fails to do so, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods;
(c) all warranties, representations, conditions and other terms of any kind whatsoever (whether implied by statute, common law or otherwise and, for the avoidance of doubt, including sections 13, 14 and 15 of the Sale of Goods Act 1979) are, to the fullest extent permitted by applicable law, excluded;
(d) except as provided in clause 5.2, Respirex shall have no liability to the Customer in respect of the failure of any or all of the Goods to comply with the warranty set out in clause 5.1;
(e) each party’s total aggregate liability shall be limited to the greater of:
(i) £250,000; or
(ii) a sum equal to four times the cost of the Goods.
9.1 Without limiting its other rights and remedies, Respirex may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer:
(i) fails to pay any amount due under the Contract on the due date for payment;
(ii) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(iii) 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 IA as if the words it is proved to the satisfaction of the court did not appear in sections 123(1)(e) or 123(2) of the IA;
(iv) 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 any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(v) applies to court for, or obtains, a moratorium under Part A1 of the IA;
(b) 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 Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership);
(d) the holder of a qualifying floating charge over the assets of the Customer (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(e) a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
(f) a creditor or encumbrancer of the Customer 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 the Customer’s assets and such attachment or process is not discharged within 14 days;
(g) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 9.1(a)(iii) to 9.1(f) (inclusive);
(h) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(i) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Respirex may suspend provision of the Goods under the Contract and/or any Other Contract if:
(a) the Customer becomes subject to any of the events listed in 9.1(a)(iii) to clause 9.1(i) (inclusive) and/or Respirex reasonably believes that the Customer is about to become subject to any of them;
(b) if the Customer fails to pay, on the due date for payment, any amount due under this Contract and/or any Other Contract(s); and/or
(c) the Customer is in breach of the Contract and/or any Other Contract.
9.3 The parties agree that any and all Other Contracts in effect between the parties and that are not subject to these Conditions shall be deemed amended to reflect Respirex’s rights under clause 9.2.
9.4 On termination of the Contract for any reason:
(a) the Customer shall immediately pay all of Respirex’s outstanding unpaid invoices and interest; and
(b) in respect of any Goods supplied but for which no invoice has been submitted, Respirex shall submit an invoice, such invoice being payable by the Customer immediately on receipt.
9.5 Expiry or termination of the Contract (howsoever occurring) shall not affect any of the parties’ rights and remedies that have accrued as at expiry/termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of expiry/termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after expiry/termination of the Contract shall remain in full force and effect (including clauses 1, 2, 3, 4.5 to 4.8 (inclusive), 6, 7, 8, 9.3 to 9.6 (inclusive) and 10).
10.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 60 days, the party not affected may terminate the Contract by giving seven days’ written notice to the affected party.
10.2 Nothing in the Contract is intended to (or shall be deemed to):
(a) establish any partnership or joint venture between the parties;
(b) constitute either party the agent of the other party;
(c) authorise either party to make or enter into any commitments for (or on behalf of) the other party.
10.3 Respirex may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
10.4 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior, written consent of Respirex.
10.5 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them (whether written (including email) or oral) relating to its subject matter.
10.6 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.7 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.8 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.
10.9 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
10.10 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand at its registered office (if a company) or its principal place of business (in any other case);
(b) deemed to have been received at the time such notice is left at the proper address.
10.11 Clause 10.10 does not apply to the service of any proceedings or other documents in any legal action or (where applicable) any arbitration or other method of dispute resolution.
10.12 For the avoidance of doubt, a notice given under the Contract is not valid if sent by email.
10.13 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.14 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of, or in connection with, it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
10.15 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of, or in connection with, the Contract or its subject matter or formation.