Conditions of Sale
1. Definitions and interpretation
1.1 In these conditions (unless the context otherwise requires);
(a) “Buyer” means the customer specified overleaf;
(b) “Company” means Fresenius Medical Care (UK) Limited;
(c) “Contract” means the contract between Buyer and the Company for the sale and purchase of the Goods and/or the provision of the services;
(d) “Goods” means the goods (or any instalment or part of them) to be supplied pursuant to the Contract;
(e) “Services” means the services (if any) to be supplied pursuant to the Contract.
1.2 The headings in these conditions are intended for reference only and shall not affect their construction.
2 General
2.1 These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Buyer to the Company and the provisions of these conditions shall prevail unless expressly varied by a special term or condition agreed by the Company in writing. Such special term or condition will only apply to the Contract and will not be deemed to apply to any prior or subsequent contract for the supply of goods or services by the Company unless agreed by the Company in writing.
2.2 Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract.
2.3 If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and affect.
2.4 No variation to the Contract shall be binding unless expressly agreed in writing by the Company and signed on its behalf.
3 Orders
3.1 Notwithstanding that the company may have been given a detailed quotation no order shall be binding on the Company unless and until it has (in the case of a telephone order) been confirmed in writing by the Buyer and (in the case of all orders) been accepted in writing by the Company.
3.2 All Goods are supplied subject to availability and the Company shall be entitles to substitute equivalent items for the Goods without prior notification save as required by ACBS or the Medicines Commission (as appropriate).
4 Prices
4.1 Unless otherwise agreed by the Company in writing
(a) The price payable for Goods and Services shall be the list price of the Company current at the date of dispatch;
(b) In the case of an order for delivery of Goods or performance of Services by instalments the price payable for each instalment shall be the list price of the Company current at the date of dispatch or performance of such instalment.
(c) The Company prices are subject to adjustment to take account of any variation in the Company’s costs including (but not limited to) the cost of materials, exchange rate fluctuations, alteration of duties and other costs since the date of the Company’s quotation or (if no quotation is issues) the buyer’s order. The Company accordingly reserves the right to adjust the Invoice price by the amount of increase or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable as if the price set out in it were the original contract price.
4.2 All prices exclusive of value added tax and this will be charged by the Company and will be payable by the Buyer at the appropriate rate.
4.3 The Company reserves the right to apply a minimum order charge of £100 in respect of Goods.
5 Additional Costs
5.1 The Buyer shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Buyer’s instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Buyer, its employees or agents.
6 Terms of Payment
6.1 The Buyer shall pay for the Goods and Services in cash not later than 30 days from the date of the invoice save that payment shall become due in any event forthwith upon the occurrence of any events referred to in condition 13 below.
6.2 If the Goods are delivered or the Services are performed in instalments the company shall be entitled to invoice each instalment as and when delivery or performance of it has been made and payment shall be due in respect of each instalment of which delivery or performance has been made notwithstanding non-delivery or non-performance of other instalments or other default on the Company’s part.
6.3 If upon the terms of the Contract the price is payable by instalments or if they Buyer has agreed to take specified quantities of Goods at specified times a default by the Buyer in the payment of any due instalment or the failure to give delivery instructions in respect of any Quantity of Goods outstanding shall cause the whole of the balance of the price to become due forthwith.
6.4 The price of the Goods and Services shall be due in full to the Company in accordance with the terms of the Contract and the Buyer shall not be entitled to exercise any set-off, lien or any other similar right or claim.
6.5 The time of payment shall be of the essence of the Contract.
6.6 Without prejudice to any other rights it may have the Company is entitled (both before and after any judgment) to change interest at a rate equal to the higher of the interest rate payable on court judgements of 2% above the base rate from time to time of Lloyds Bank Plc on overdue payments of the price of the Goods or the price of any instalments of Goods.
7 Delivery and performance
7.1 All times, dates or periods given for delivery of the Goods or performance of the Services are given in good faith but without any responsibility on the Company’s part.
7.2 Time of delivery of the Goods or performance shall not be of the essence of the Contract.
7.3 Any period for the delivery of the Goods or performance of the Services shall be calculated from the time of the Company’s acceptance of the Buyer’s order or from the Company’s receipt of all information necessary to enable the company to manufacture or procure the manufacture of the Goods or perform the Services (whichever shall be the latest).
7.4 Where the goods are handed to a carrier for carriage to the Buyer or to United Kingdom port for export any such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purposes of sections 44, 45 and 46 of the Sale of Goods Act 1979.
7.5 No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to delivery or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract (being a loss, damage, defect or non-compliance which would be obvious upon a reasonable inspection of the Goods, whether such an inspection was carried out or not) or for non-delivery will attach to the Company unless claims to that affect are notified in writing by the Buyer for the Company.
(a) Within fourteen days of delivery for loss, damage, defect or non-compliance with the Contract; or
(b) Within ten days of the date of the invoice for non-delivery.
7.6 In the event of a valid claim for loss, damage, defect, or non-compliance with the Contract or non-delivery the Company undertakes at its option either to reprocess or replace the items concerned at its expense but shall not be under any further or other liability in connection with such loss, damage, non-compliance or non-delivery.
7.7 If the Buyer shall fail to give notice in accordance with condition 7.5 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for such items accordingly and all claims in respect of loss, damage, defect, non-compliance or non-delivery shall (save as set out in condition 11 below) thereafter be wholly barred
7.8 If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may at its sole discretion without prejudice to its other rights and for such period as the Company may determine store the goods at the Buyer’s risk and take all reasonable steps to safeguard and insure them at the Buyer’s cost, provided that the Buyer shall be immediately informed of such storage.
7.9 The Company shall have the right to make delivery of the Goods by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the contract shall be addition to and not in derogation of this right.
8 Returns
8.1 Goods supplied in accordance with the Contract cannot be returned without the Company’s prior written authorisation and must in any event be notified to the Company in writing within fourteen days of date of invoice. The Buyer shall comply with all instructions for despatch or collection of returned Goods. Any return Goods without such authorisation is entirely at the Buyer’s risk.
Return and Re-stocking of goods and return of compromised/damaged stock
8.2 For any goods ordered and delivered to the stipulated customer address that are refused or returned due to any reason except incorrect supply by FMC, a charge shall be applied to cover return and re-stocking, and shall be deducted from the Customer’s refund amount and any charges not covered within the re-fund amount shall be invoiced separately.
Where a product is ordered and can only be partially delivered due to technical issues at the customer site or insufficient storage capacity, the customer shall be charged the full cost (100%) of the impacted product
For any goods ordered and delivered to the stipulated customer address that are refused or returned due to any reason except incorrect supply by FMC, that cannot be returned and restocked for sale and subsequently need to be disposed of, will be charged at 100% of the value of the impacted goods.
Charges can be made available on request.
9 Carriage
9.1 Unless otherwise agreed by the Company in writing the Goods will be delivered ex-works the Company’s premises and the price of the Goods is exclusive of carriage, packaging and insurance to the Buyer’s premises.
9.2 Where the Buyer requests delivery of the Goods in a manner other than that selected by the Company, any difference in price shall be charged to the Buyer’s account.
10 Conditions and warranties
10.1 The Contract shall not constitute a sale of the Goods by description or sample.
10.2 Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to:
(a) The quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the company); or
(b) The correspondence on the goods with any description or sample; or
(c) The skill or care to be exercised in the performance of the Service or as the time for their performance;
are hereby expressly negative.
11. Defective goods and Services
11.1 In substitution for all rights which the Buyer would or might have but for these conditions the Company undertakes:
(a) In the case of Goods manufactured by the Company, that if within twelve months of delivery of any item of the Goods a defect in materials or workmanship appears in it (being a defect which would not be obvious on reasonable inspection of it, whether such an inspection was carried out or not) the Company will at its own discretion either credit to the Buyer the full price paid by the Buyer to the Company for such item or repair it or supply a replacement of it free of charge at the place of delivery specified by the Buyer for the original Goods provided the in any case the original goods have been accepted and paid for; and
(b) In the case or Services performed by the Company, that;
(i) in respect of any claim that any of the Services are defective or are not otherwise in accordance with the Contract (being a defect or non-conformity which would be obvious upon reasonable inspection of the items which have been the subject or the services) or for non-performance, no liability will attach to the Company unless the claim to that effect if notified in writing by the buyer to the Company within fourteen days of performance of the service concerned for any defect or non-compliance or within ten days of the date of the company’s invoice for non-performance;
(ii) if within three months of performance of any of the Services any defect in workmanship appears in such Services (being a defect which would not be obvious on reasonable inspection of the items which have been the subject of the Services, whether such and inspection was carried out or not);
then in either such case, the company will in its entire discretion either credit to the Buyer the full price paid by the Buyer to the Company in respect of the particular Services concerned, or will re-perform the services concerned free of charge at the price at which the original Services were or were to have been performed.
11.2 in the case of Goods not manufactured by the Company and Services not performed by the Company, the Company will pass onto the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company’s supplier provided that the Goods or the Services (as the case may be) have been accepted and paid for.
11.3 In order to exercise its rights under condition 11.1(a) and 11.1(b)(ii), the Buyer shall inform the Company within fourteen days of the date when the defect appeared or ought reasonably to have been discoverable and (in the case of defective Goods) shall at the Company’s written request return the defective Goods carriage paid to the Company’s premises.
11.4 Nothing in these conditions shall impose any liability upon the Company in respect of any defect in the Goods or the Services arising out of the acts, omissions, negligence or default of the Buyer, its employees or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Buyer to comply with any recommendations of the Company as to storage and handling of the Goods.
11.5 Where the Goods are for delivery or the Services are to be performed by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery or performance of such instalments.
11.6 Nothing in these conditions shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence in so far as such exclusion or restriction is prohibited by United Kingdom statute.
12. Consequential Loss
12.1 The company shall not be liable for any costs, claims, damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or
accruals or by reference to accrual of such costs, claims, damages or expenses on a time
basis.
13. Default or Insolvency of Buyer
13.1 If the Buyer is in breach of any of its obligations under Contract or if any distress or execution is levied on the Buyer’s property or assets or if the buyer is unable to pay its debts as they fall due or if any resolution or petition to wind up the Buyer is passed or presented or if a receiver, administrative receiver or administrator or the whole or any part of the Buyer’s undertaking, property or assets is appointed, the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Buyer or may (without prejudice to the Company’s right subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend delivery or any further deliveries (as the case may be) of Goods or performance or any further performance (as the case may be) of Services until any default by the Buyer is remedied.
14. Limitation of Liability
14.1 The aggregate liability of the Company (whether in contract or for negligence or breach of statutory duty or otherwise howsoever) to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price payable for the Goods and the Services pursuant to the Contract.
15. Representations
15.1 No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Company’s agents or employees shall be construed to enlarge, vary or override in any way any of these conditions.
16. Force Majeure
16.1 The company shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered and to delay or cancel performance of Services or to reduce the amount of Services performed if and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery or performing any of the Services through any circumstances beyond its control including (but not limited to) strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown or plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
17. Cancellation
17.1 Save as provided in conditions 13 and 16 above the Contract may not be cancelled except by agreement in writing of both parties and upon the payment to the Company of such amount as may be necessary to indemnify the Company against all loss resulting from such cancellation.
18. Sub-contracting
18.1 The company may assign any of its rights under the Contract or sub-contract the whole or any part of its obligations to any person, firm or company.
19. Applicable law
19.1 English is the law applicable to the Contract and the English courts shall have jurisdiction to settle any dispute which may arise out of or in connection with the Contract.