Terms of Sale
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (“T&Cs”)
1.2 Definitions:
1.2.1 Commencement Date: the date that the Acknowledgement is sent to the Buyer.
1.2.2 credit: has the meaning given in clause 7.9.2;
1.2.3 buyer: the person, firm or company who purchases the Products from the Seller;
1.2.4 despatch Note: a document, in the form set out in Schedule 3, produced by the Seller or the appointed carrier of the relevant Products to the Buyer at the Delivery Point;
1.2.5 delivery Point: the Buyer’s Premises or such other location as the Buyer specifies on the Order Form and which has been accepted by the Seller in the Acknowledgement;
1.2.6 expenses: any out-of-pocket costs incurred by the Seller in fulfilling an Order, including (without limitation):
1.2.6.1 postage, packaging, carriage, freight, and handling charges;
1.2.6.2 insurance;
1.2.6.3 currency conversion and banking charges applicable to the payment method used;
1.2.6.4 value added tax or any other applicable sales tax in the country in which the Seller is resident; and
1.2.6.5 any customs, import or other duties charged in respect of the sale and importation of Products into the country in which the Buyer is resident or the Delivery Point is located.
1.2.7 Term: from the Commencement Date up to and including the date on which the T&Cs are terminated in accordance with Clause 15;
1.2.8 intellectual Property Rights: patents, rights to inventions, copyright 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 in or associated with the Products;
1.2.9 invoice: an invoice raised by the Seller in accordance with clause 9.3;
1.2.10 list Prices: the prices for the Products set out in the Seller’s catalogue and website as varied from time to time by the Seller in accordance with clause 9.2, but excluding any Expenses;
1.2.11 net Selling Price: the List Prices of Products ordered by the Buyer less any discounts granted to the Buyer by the Seller in writing from time to time;
1.2.12 order: an order for Products submitted by the Buyer to the Seller and accepted by the Seller in accordance with clause 3;
1.2.13 acknowledgement: an order confirmation document in the form set out in Schedule 2, sent by the Seller to the Buyer, agreeing to fulfil the Order and identifying the relevant Order by its Order Reference;
1.2.14 order Form: an order form in the form set out in Schedule 1, sent by the Buyer to the Seller, requesting the supply of Products or confirming an oral order for Products;
1.2.15 order Reference: the reference applied to an Order Form by the Seller on receipt of that Order Form;
1.2.16 products: the products set out in the Seller’s catalogue and website as amended from time to time in accordance with clause 12;
1.2.17 specification: the specification of the Products set out in Clause 4 or any other specification agreed in writing between the parties from time to time;
1.3 reference to a clause, paragraph or Schedule is to a clause, paragraph or Schedule of or to these T&Cs, unless the context requires otherwise.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to a person includes an incorporated or unincorporated body.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 Unless the context otherwise requires, the words including and include and words of similar effect shall not be deemed to limit the general effect of the words which precede them.
1.9 The headings in these T&Cs are for ease of reference only and shall not affect its construction or interpretation.
2. Sale of the products
2.1 Subject to clause 3.7, during the Term and subject to the provisions of these T&Cs, the Seller shall sell and the Buyer shall buy such quantities of the Products as may be ordered by the Buyer from time to time.
2.2 These T&Cs shall apply to all future arrangements between the parties for the Seller to supply and the Buyer to buy goods unless the parties agree otherwise in writing.
3. Quotations and order process
3.1 Quotations are subject to withdrawal at any time before receipt of any unqualified order from the Buyer and shall be deemed to be withdrawn unless so accepted within 30 days from the date therein stated.
3.2 All quotations are given and all orders are accepted on these terms, which supersede any other terms appearing in the Seller’s catalogue or elsewhere, and shall override and exclude any other terms stipulated or incorporated or referred to by the Buyer, whether in the order or in any negotiation and any course of dealing established between the Seller and the Buyer.
3.3 The Buyer acknowledges that there are no representations outside these terms, which have induced him to enter into the Order (which expression shall include any contract of which these terms form part).
3.4 When the Buyer wishes to place an order for Products, it shall either send an Order Form to the Seller or submit orally an order, provided that an order made orally must be confirmed by an Acknowledgement (bearing the additional words “confirmation of oral order”) received by the Seller within three days from the date on which the Buyer gave the oral order.
3.5 An Order shall be treated as an offer by the Buyer to contract with the Seller, but shall not be binding on the Buyer until accepted by the Seller in accordance with clause 3.7. The Seller may, at its sole discretion, accept amendments to an Order after acceptance.
3.6 The Seller shall apply an Order Reference to each Order received from the Buyer and inform the Buyer of the Order Reference as soon as reasonably practicable. Each party shall use the Order Reference to identify each Order from the time at which the Order Reference is known to it.
3.7 The Seller shall, at its discretion, accept the Order using an Acknowledgement and such Acknowledgement shall be treated as acceptance of the Buyer’s Order.
3.8 The Seller shall arrange delivery of the Products in accordance with the Buyer’s instructions on the Order Form and the provisions of these T&Cs, provided that the Buyer shall be liable to pay for all Expenses incurred by the Seller in complying with such instructions. Such Expenses shall be included on the Invoice for the relevant Products.
4. Specification of the products
4.1 All descriptions and illustration contained in the Seller’s catalogues, website, price lists and advertisements or otherwise communicated to the Buyer are intended merely to present a general idea of the Products described therein and are not to be relied upon by the Buyer or treated as binding or as forming any part of the Order.
4.2 Notwithstanding that a sample of the Products may have been exhibited to and inspected by the Buyer, such conduct is not to be treated as constituting a sale by sample. The Buyer shall take the Products at his own risk as to their corresponding with the said sample or as to their quality condition or sufficiency for any purpose and the Seller excludes all liability for such.
5. Patents and trade marks
5.1 The Products are sold subject to the intellectual property rights of any person, including the Intellectual Property Rights of the Seller.
5.2 Should such rights operate to restrict the sale or sue of the Products in any part of the world, the Seller makes no representation or warranty that the use of the Products does not infringe the right of any third party and the Seller accepts no liability in this respect.
6. Delivery of the products
6.1 Acceptance of any change to the Delivery Point requested by the Buyer shall be at the Seller’s sole discretion and the Buyer shall be liable for any additional Expenses incurred by the Seller as a result of such change. The Seller shall arrange for suitable transport to the Delivery Point. On delivery, the Seller (or its appointed carrier) shall provide the Buyer with such export documents as are necessary and which the Buyer is unable to prepare together with a Delivery Note.
6.2 Delivery or performance dates in relation to the supply by the Seller of Products are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery of the Products.
6.3 Should the Seller be prevented from or hindered in delivering the Products or any part thereof by reason of war, riot, explosion, fire, flood, strike, lock-out, storage of material or labour or any cause beyond the Seller’s control, the time for delivery shall be extended until the operation of the cause preventing the hindering delivery has ceased. If the situation subsists for a period longer than 90 days then the Seller may terminate the Order upon notice to the Buyer.
6.4 Should the Seller be prevented from delivering part of the Goods by reason of any of the causes specified in the preceding sub-clause, the Seller shall deliver and the Buyer shall take and pay for such part of the Products, as the Seller shall be able to deliver in accordance with the Order.
6.5 The Seller may effect delivery in one or more consignments or instalments unless otherwise expressly agreed.
7. Defects
7.1 The Buyer shall inspect the Products immediately on delivery.
7.2 The Seller warrants that any Products manufactured by the Seller will be free from defects in materials and workmanship for a period of 12 months from the date of delivery (Warranty) and the Seller will at its option refund the purchase price or repair or replace free of charge any Products which its examination confirms are defective provided that:
7.2.1 the Buyer makes a full inspection of the Products immediately upon delivery;
7.2.2 the Buyer notifies the Seller forthwith of any defects which it discovers;
7.2.3 the Buyer has only used the Products in accordance with any instruction or recommendation of the Seller;
7.2.4 the Products have not been adjusted, altered, adapted, or repaired by any part other than the Seller; and
7.2.5 the Products are either made available to the Seller for inspection or returned to the Seller at the Buyer’s own expense, as the Seller may request.
7.3 The Buyer shall, within seven days of the arrival of each delivery of the Products at the Delivery Point, give written notice of rejection to the Seller on account of any defect by reason of which the Buyer alleges that the Products delivered do not comply with the Warranty and which was apparent on reasonable inspection.
7.4 If the Buyer fails to give notice as specified in clause 7.3 then the Products shall conclusively be presumed to comply with the Warranty and, accordingly, the Buyer shall be deemed to have accepted the delivery of the Products in question and the Seller shall have no liability to the Buyer with respect to that delivery (except in relation to liability for any latent defects).
7.5 In the event that the Buyer has complied with clause 7.3 and that the Buyer has a valid claim for defect, loss, damage or non-compliance with the Order the Seller undertakes at its option either to reprocess or replace the items concerned at its expense.
7.6 If the Buyer alleges that any Products are defective, it shall, if so requested by the Seller, return the relevant Products (unaltered and unrepaired) to the Seller for inspection as soon as possible and at its own risk and expense.
7.7 If the Buyer fails to take delivery on the delivery date then the Seller will be entitled to store the Products on the Buyer’s behalf and any costs and expenses relating to such storage shall be for the Buyer’s account becoming due and payable within 30 days from when such costs and expenses were incurred by the Seller.
7.8 The Products shall be at the Buyer’s risk from the date of delivery and the Seller shall not be liable for any loss of any kind to the Buyer arising from any damage to the Products occurring after the risk has passed to the Buyer however caused, nor shall any liability of the Buyer to the Seller be diminished or extinguished by reason of such loss.
7.9 If the Buyer rejects any delivery of the Products which do not comply with the Warranty, the Seller shall, within seven days of the Seller accepting that the Products do not comply with the Warranty:
7.9.1 supply replacement Products which comply with the Warranty, in which event the Seller shall be deemed not to be in breach of these T&Cs or have any liability to the Buyer for the rejected Products; o
7.9.2 notify the Buyer that it is unable to supply replacement Products, in which case the Seller shall grant to the Buyer a credit equal to the value of the Products which the Seller agrees do not comply with the Warranty (Credit).
7.10 The Seller’s decision as to whether the Products comply with the Specification shall be final.
7.11 If the Products are lost or damaged in transit from the Seller’s place of business to the Buyer’s place of receipt and if the Buyer gives the Seller two clear days notice of such then the Seller will notify the carrier on behalf of the Buyer’s claim.
8. Import licenses
8.1 The Buyer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Products as are required from time to time and, if required by the Seller, the Buyer shall make those licences and consents available to the Seller prior to the relevant shipment.
9. Prices and payment
9.1 The Buyer shall pay the Seller for the Products in accordance with the provisions of this clause 9.
9.2 The List Prices may be varied from time to time by the Seller on giving 30 days’ notice to the Buyer. The price applicable to each Order shall be the latest version of the List Prices for the Products that has been notified to the Buyer at least 30 days before the delivery date.
9.3 The Seller shall invoice the Buyer for the Net Selling Price of all Orders accepted and all related Expenses (but less any Credits due to the Buyer if applicable) in respect of each Order.
9.4 The Buyer shall pay to the Seller the total amount of each Invoice in pounds sterling by telegraphic transfer within 30 days after the date of the relevant Invoice, notwithstanding that delivery may not have taken place and that property in the Products has not passed to the Buyer.
9.5 All amounts of money referred to in these T&Cs shall be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Buyer is required under any applicable law to withhold or deduct any amount from the payments due to the Seller, the Buyer shall increase the sum it pays to the Seller by the amount necessary to leave the Seller with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
9.6 All amounts due to the Seller under these T&Cs shall become due immediately if these T&Cs is terminated or novated despite any other provision.
9.7 The time for payment shall be of the essence and no payment shall be deemed to have been made until the Seller has received payment in cleared funds.
9.8 If the Buyer fails to make any payment due to the Seller under these T&Cs by the due date for payment, then, without limiting the Seller’s remedies under these T&Cs, the Buyer shall pay interest on the overdue amount at the rate of 1.5% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
9.9 When the Products are to be supplied or payment is to be made by instalments the failure of the Buyer to pay any instalment in due time shall entitle the Seller to treat such failure as a repudiation of the whole Order by the Buyer and to recover damages for such breach of Order.
9.10 All amounts due under these T&Cs shall be paid by the Buyer to the Seller in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Returns policy
10.1 Goods shall not be accepted for credit if:
10.1.1 they are, in the opinion of the Seller, altered, obsolete, discontinued or specially made items;
10.1.2 the Seller’s invoice number, date of purchase, and reason for return is not shown on the packaging list;
10.1.3 in the case of sterile packaged items and implants, the seal on packaging has been broken;
10.1.4 the Products are not in a condition, such condition to be determined in the absolute discretion of the Seller, to be placed on the Seller’s stock for immediate resale;
10.1.5 any use by or expiry dates or relevant to the products have less than 12 months to run.
10.2 In all cases no credit will be given on Products which are returned after 90 days from the delivery or if items are returned without the express written consent of the Seller and the Seller reserves the right to make a handling charge of at least 10% of the then current list price of such returned item which will be deducted from any such credit.
11. Title and risk
11.1 In all cases, except for the purposes of section 44, 45 and 46 of the Sale of Goods Act 1979, the carrier will be the agency of the Seller and not the Buyer.
11.2 Risk in and responsibility for the Products shall pass to the Buyer once they have been delivered to the Delivery Point or on collection of the Products from the Seller’s business premises.
11.3 The Seller shall retain title to and ownership of the Products until it has received payment in full of all sums due under the Order and any other Orders between the Seller and the Buyer. If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.
11.4 Until transfer of title under clause 11.3 the Buyer shall be the bailee of the Products for the Seller and the Products and any mixed products shall be stored by the Buyer separately from any products which belong to the Buyer or any third party, and shall be clearly marked by the Buyer and identifiable as being the Seller’s property.
11.5 Until ownership of the Products passes to the Buyer, the Buyer shall hold the Products on the following terms:
11.5.1 the Products shall be stored separately from other goods held by the Buyer and shall be clearly identifiable as the property of the Seller;
11.5.2 the Products shall not be mixed with other goods or altered in any way;
11.5.3 the Products shall be adequately stored and maintained in a satisfactory condition; and
11.5.4 each Product shall be insured for an amount at least equal to its List Price and any proceeds of the insurance policy shall be held on trust for the Seller in a separate account in the joint names of the Seller and the Buyer. The Buyer shall not mix the insurance proceeds with any other money or pay the proceeds into an overdrawn bank account. The Buyer shall account to the Seller for the proceeds accordingly and make good any shortfall in the amount due to the Seller.
12. Changes
12.1 The Seller may at its absolute discretion:
12.1.1 amend the Seller’s catalogue and website to exclude one or more of the Products as it thinks fit;
12.1.2 amend the Seller’s catalogue and website to include any modified version of the Products, additional goods or replacements for the Products.
12.2 The Seller may alter the Specification of any of the Products. Where the Buyer has placed an Order and the Seller has accepted that Order using an Acknowledgement Confirmation, and the Specification of any of the Products contained in that Order are varied in accordance with this clause 12.2, the Buyer may cancel the part of the Order that relates to the varied Products only.
12.3 The Seller may, on giving written notice to the Buyer, exclude from these T&Cs one or more of the Products as it thinks fit otherwise than in accordance with clause 12.1.1. Where the Buyer has placed an Order and the Seller has accepted that Order using an Acknowledgement, and any of the Products contained in that Order are excluded from these T&Cs, the Order shall automatically be varied to exclude such excluded Products.
12.4 The Buyer may not cancel the Order without the written consent of the Seller, which if given shall be deemed to be on the express condition that the Buyer shall indemnify the Seller against all loss, damage, expenses, claims, or action arising out of such cancellation unless otherwise agreed in writing by the Seller.
13. Intellectual property rights
13.1 The Buyer acknowledges that:
13.1.1 the Intellectual Property Rights are the Seller’s (or its licensor’s) property;
13.1.2 nothing in these T&Cs shall be construed as conferring any licence or granting any rights in favour of the Buyer in relation to the Intellectual Property Rights. The Seller asserts its full rights to control the use of its trade marks within the EEA and worldwide and the Buyer shall assist the Seller as required in preventing parallel importers from diluting the Seller’s rights; and
13.1.3 any reputation in any trade marks affixed or applied to the Products shall accrue to the sole benefit of the Seller or any other owner of the trade marks from time to time.
13.2 The Buyer shall not repackage the Products and/or remove any copyright notices, confidential or proprietary legends or identification from the Products save for any removal which is a necessary result of a manufacturing process of which the Seller has been previously notified in writing by the Buyer.
13.3 The Buyer shall not use (other than pursuant to these T&Cs) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Seller or any associated company of Seller owns or claims rights in anywhere in the world.
13.4 If at any time it is alleged that the Products infringe the rights of any third party or if, in the Seller’s reasonable opinion, such an allegation is likely to be made, the Seller may at its option and its own cost:
13.4.1 modify or replace the Products in order to avoid the infringement; or
13.4.2 procure for the Buyer the right to continue using the Products; or
13.4.3 repurchase the Products at the price paid by the Buyer, less depreciation at the rate the Seller applies to its own equipment.
13.5 The Buyer shall promptly and fully notify the Seller of:
13.5.1 any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to the Buyer’s notice; and
13.5.2 any claim by any third party that comes to the Buyer’s notice that the sale or advertisement of the Products infringes the rights of any person.
13.6 The Buyer agrees (at the Seller’s request and expense) to do all such things as may be reasonably required to assist the Seller in taking or resisting any proceedings in relation to any infringement or claim.
13.7 In the event of any claim, proceeding or suit by a third party against the Buyer alleging an infringement of any Intellectual Property Right connected with the Products, the Seller shall defend the Buyer at the Seller’s expense, subject to:
13.7.1 the Buyer promptly notifying the Seller in writing of any such claim, proceeding or suit; and
13.7.2 the Seller being given sole control of the defence of the claim, proceeding or suit,
and provided that the Seller shall not be liable for infringements to the extent that they arise out of or in connection with modifications to the Products made by anyone except the Seller or its authorised representative, or out of use or combination of the Products with products or third party materials not specified or expressly approved in advance in writing by the Seller, or where the claim, proceeding or suit arises from the Seller’s adherence to the Buyer’s requested changes to the Specification or from infringing items of the Buyer’s origin, design or selection.
13.8 The Seller shall reimburse the Buyer with an amount equal to any cost, expense or legal fees incurred at the Seller’s written request or authorisation and shall indemnify the Buyer against any liability assessed against the Buyer by final judgement on account of an infringement.
14. Confidentiality
14.1 The Buyer undertakes that it shall not at any time whilst the T&Cs are in effect, and for a period of five years after termination of these T&Cs, disclose to any person any confidential information concerning the business, affairs, Buyers, clients or Sellers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.2.
14.2 The Buyer may disclose the Seller’s party’s confidential information:
14.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these T&Cs. The Buyer shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and
14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these T&Cs.
15. Duration and termination
15.1 These T&Cs shall commence on the Commencement Date and, subject to the provisions of this clause 15, shall continue until terminated in accordance with this clause.
15.2 The Seller may terminate these T&Cs by giving written notice to the other party if any of the following events occurs:
15.2.1 the Buyer:
15.2.1.1 defaults in any payment or is otherwise in breach of any of its obligations to the Seller under the T&Cs or any other contract or T&Cs with the Seller (and fails to remedy the breach having been given 14 written notice of such failure); or
15.2.1.2 commits a material breach of these T&Cs which (in the case of a breach capable of remedy) has not been remedied within 30 days of the receipt by the other of a notice specifying the breach and requiring its remedy; or
15.2.1.3 repeatedly commits the same or substantially similar breaches of its obligations under these T&Cs; or
15.2.1.4 is the subject of a winding-up order or bankruptcy order; or
15.2.1.5 passes a resolution or makes a determination for it to be wound up (without a declaration of solvency/except for the purposes of amalgamation or reconstruction, the terms of which have been previously approved in writing by the other party); or
15.2.1.6 has appointed to it an administrator or an administrative receiver; or
15.2.1.7 being a partnership, in addition to the above, suffers bankruptcy orders being made against all of its partners; or
15.2.1.8 ceases or suspends payment of any of its debts, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
15.2.1.9 proposes or enters into any arrangement, compromise or composition in satisfaction of its debts; or
15.2.1.10 ceases, or threatens to cease, to carry on business; or
15.2.2 an incumbrancer takes possession, or a receiver, manager or administrative receiver is appointed, of the whole or any part of the other party’s assets; or
15.2.3 any event analogous to those described in clause 15.2.1.4 to clause 15.2.1.9 occurs in relation to the other party in any jurisdiction in which that other party is incorporated, resident or carries on business.
15.3 Following the termination of these T&Cs for any reason whatsoever, the Seller shall be entitled (at its option) to cancel any Orders which have not yet been delivered.
15.4 Termination or expiry of these T&Cs shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the T&Cs which existed at or before the date of termination or expiry.
16. Force majeure
16.1 Neither party shall be in breach of these T&Cs nor liable for delay in performing, or failure to perform, any of its obligations under these T&Cs if such delay or failure result from events, circumstances or causes beyond its reasonable control. 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.
17.Entire agreement
17.1 These T&Cs constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, terms and conditions promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 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 these T&Cs. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these T&Cs.
18. Waiver of rights based on misrepresentation
18.1 Each party unconditionally waives any rights it may have to claim damages against the other on the basis of any oral or written statement made by the other or by its legal advisers (whether made carelessly or not) that is not set out or referred to in these T&Cs (or for breach of any warranty given by the other not so set out or referred to), unless such statement or warranty was made or given fraudulently.
18.2 Each party unconditionally waives any rights it may have to seek to rescind these T&Cs on the basis of any statement made by the other (whether made carelessly or not), unless such statement was made fraudulently.
19. Limitation of liability
19.1 The Seller’s total liability in contract, tort (including negligence), misrepresentation or otherwise in relation to these T&Cs shall be limited to the aggregate amounts paid by the Buyer for Products (excluding Expenses) during the previous 12 months, or, if the date of the breach is less than 12 months after the Commencement Date, the List Price of the Products to which the claim relates.
19.2 The Seller shall not be liable to the Buyer for:
19.2.1 any indirect, special or consequential loss or damage; or
19.2.2 loss of data or other equipment or property; or
19.2.3 economic loss or damage; or
19.2.4 incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
19.2.5 any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, even if the Seller is advised in advance of the possibility of any such losses or damages.
19.3 The Seller shall not be liable for any losses arising from the Buyer’s subsequent use or misuse of the Products including (without limitation):
19.3.1 fair wear and tear;
19.3.2 wilful damage;
19.3.3 the Buyer’s negligence, or that of its agents or employees, or any failure to follow the Seller’s instructions as to use of the Products;
19.3.4 abnormal working conditions beyond those referred to in the Specification; and
19.3.5 any alteration or repair of the Products by any manufacturing process or otherwise, save for any latent defect which means that the Product did not comply with the Specification.
19.4 The Seller is not liable for:
19.4.1 non-delivery, unless the Buyer notifies the Seller of the claim within 7 working days of the date of the Seller’s invoice; or
19.4.2 damage to or loss of all or part of the Products in transit (where the Products are carried by the Seller’s own transport or by a carrier on behalf of the Seller), unless the Buyer notifies the Seller within 15 working days of receipt of the Products or the scheduled date of delivery, whichever is the earlier.
19.5 The Buyer acknowledges and agrees that the List Prices reflect the limitations of liability contained in these T&Cs.
20. Assignment
20.1 The Buyer shall not, without the prior written consent of the Seller, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these T&Cs.
21. Dispute resolution
21.1 If a dispute arises out of or in connection with these T&Cs or the performance, validity or enforceability of it (Dispute) then except as expressly provided in these T&Cs, the parties shall follow the procedure set out in this clause:
21.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Seller and the Buyer shall attempt in good faith to resolve the Dispute;
21.1.2 if the Seller and the Buyer are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation. Unless otherwise agreed between the parties within 30 days of service of the Dispute Notice, the mediator shall be nominated by the Seller. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to mediation body as agreed or nominated by the Seller in accordance with this clause. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice.
21.2 The commencement of mediation shall not prevent the parties commencing or continuing court or arbitration proceedings in relation to the Dispute under clause 29.
21.3 If the Dispute is not resolved within 60 days after service of the ADR notice, either party fails to participate or ceases to participate in the mediation before the expiry of that 60 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 29.
22. Cumulative remedies
22.1 The rights and remedies provided under these T&Cs are in addition to, and not exclusive of, any rights or remedies provided by law.
23. No partnership or agency
23.1 Nothing in these T&Cs is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Severance
24.1 If any provision or part-provision of these T&Cs is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these T&Cs.
24.2 If one party gives notice to the other of the possibility that any provision or part-provision of these T&Cs is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. Amendment and waiver
25.1 No variation of these T&Cs shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
25.2 No failure or delay by a party to exercise any right or remedy provided under these T&Cs 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.
26. Third party rights
26.1 No person who is not party to these T&Cs shall have any right to enforce any term of these T&Cs.
27. Notices
27.1 Any notice or other communication given to a party under or in connection with these T&Cs shall be in writing and shall be:
27.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
27.1.2 sent by fax to its main fax number ;or
27.1.3 sent by email to the most recent email address specified in the Order Form.
27.2 Any notice shall be deemed to have been received:
27.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
27.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
27.2.3 if sent by fax or e-mail, at 9.00 am on the next Business Day after transmission.
27.3 This clause 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.
28. Survival of obligations
28.1 Any of the provisions of these T&Cs that are expressed to take effect in whole or in part on or after termination, or are capable of having effect after termination, shall remain in full force and effect despite termination.
29. Governing law and jurisdiction
29.1 These T&Cs and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to these T&Cs. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with these T&Cs, these T&Cs shall prevail.
29.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these T&Cs or its subject matter or formation.
29.3 Each party irrevocably consents to any process in any legal action or proceedings being served on it in accordance with the provisions of these T&Cs relating to service of notices. Nothing contained in these T&Cs shall affect the right to serve process in any other manner permitted by law.
29.4 Nothing in this clause 29 shall limit the right of the Seller to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the Seller from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
30. Language
30.1 These T&Cs are drafted in the English language. If these T&Cs are translated into any other language, the English language version shall prevail.
30.2 Any notice given under or in connection with these T&Cs shall be in the English language. All other documents provided under or in connection with these T&Cs shall be in the English language, or accompanied by a certified English translation.
30.3 The English language version of these T&Cs and any notice or other document relating to these T&Cs shall prevail if there is a conflict except where the document is a constitutional, statutory or other official document.