1.1 In these Terms and Conditions:
"Customer" means [the person, firm or company or other party whose order for the Goods is accepted by the Company];
"Goods" means the products [which the Company is to supply in accordance with these Conditions/specified in the order form to which these Conditions are annexed];
"Company" means GAMA Healthcare Ltd a private company incorporated under the laws of England and Wales under company number 05316871 whose registered office is 2 Regal Way, Watford, WD24 4YJ.
"Conditions" means these terms and conditions of sale and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company;
"Contract" means the contract for the sale and purchase of the Goods;
"Writing" includes facsimile transmission, e-mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1 The Company shall sell and the Customer shall purchase the Goods in accordance with any written order of the Customer which is accepted by the Company, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to any such order made or purported to be made, by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing by the Company.
2.3 The Company's employees or agents are not authorised to make any representations concerning the Goods unless confirmed in writing and signed by a director of the Company. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Company is followed or acted upon entirely at the Customer's own risk and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company
3. Orders and specifications
3.1 In the event that the Company has not given a written acknowledgement of the Customer's order these conditions shall nonetheless apply to the Contract provided the Customer shall have had prior notice of them.
3.2 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Customer's order (if accepted by the Company).
3.4 Any description contained in the Company's catalogues, samples, price lists or other advertising material is intended merely to present a general picture of the Goods and shall not form a representation or be part of the Contract.
3.5 In the event that any Goods shall differ in any way to a degree which in the opinion of the Company is not material; that is contained, referred to or described in the Company's catalogues, samples, price lists or other advertising material then the Company shall not be liable to replace, repair, make good or accept a return of such Goods and the Customer shall accept such Goods and make payment for such Goods in accordance with the terms hereof.
3.6 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements.
3.7 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
4. Price of Goods
4.1 Subject to any agreement in writing to the contrary the Company's quotations are provisional and may be altered to take account of any changes taking place between the date of quotation and the Company's acceptance of the Customer's order in the price of necessary materials, rates of wages and other costs of production or in the Customer's specification, instructions or design or in the event that the Customer orders part only of the quantity referred to in any quotation.
4.2 The Company reserves the right, by giving notice to the Customer at any time, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change of delivery dates, quantities or specifications for the Goods which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions and such increased prices ruling at the day of despatch by the Company shall be substituted for the previous contract price.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Company, all prices are given by the Company on [an ex works basis/the basis of delivery to the Customer at the Company's premises] and where the Company agrees to deliver the Goods otherwise than at the Company's premises, the Customer shall be liable to pay the Company's charges for transport, packaging and insurance ("transport costs").
4.4 The price is exclusive of any applicable value added tax which the Customer shall be additionally liable to pay to the Company, and all taxes, duties and other government charges payable in respect of the Goods.
4.5 The cost of pallets and returnable containers will be charged to the Customer in addition to the price of the Goods but full credit will be given to the Customer provided they are returned undamaged to the Company before the due payment.
5. Terms of Payment
Payment is due on a proforma basis and no goods will be released until the payment has been cleared. Once trade has been established on a regular basis and pending a credit check we can discuss payment terms which will give rise to a “Due Date” of payment. If the Customer fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-
5.1 cancel the Contract or suspend any further deliveries to the Customer;
5.2 appropriate any payment made by the Customer to such of the Goods (or the Goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
5.3 charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of five per cent. per annum above the Barclays Bank Plc base rate from time to time until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest).
Unless otherwise agreed in writing by the Company:
6.1 The Company shall deliver the Goods by the means most convenient to the Company to the address or addresses specified by the Customer or (in the event that the Customer fails to specify an address) to any address at which the Customer resides or carries on business.
6.2 The Company shall be entitled to add to the Contract price a reasonable charge for packaging and delivery and off-loading shall be at the Customer's risk.
6.3 Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Company in Writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. The Company shall be entitled to defer delivery until any monies due from the Customer have been received.
6.4 Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 2 per cent. more or 2 per cent. less than the quantity ordered without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered.
6.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.6 If the Company fails to deliver the Goods (or any instalment) for any reason (other than any cause beyond the Company's reasonable control or the Customer's fault) and the Company is accordingly liable to the Customer, the Company's liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.7 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may:-
6.7.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.7.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
7. Risk and the property
7.1 The risk in the Goods which the Company agrees to supply shall pass to the Customer on delivery or the date (if earlier) on which the Goods being ready for delivery, delivery is postponed at the Customer's request. All other Goods shall be at the Customer's risk at all times and the Company shall not be liable for any loss of or damage sustained by any Goods left with the Company howsoever caused and whether or not attributable to negligence on the part of the Company or negligence or wilful default on the part of any servant or agent of the Company.
7.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Customer [for which payment is then due].
7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company's fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company's property but the Customer shall be entitled to resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are and repossess the Goods.
7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
7.6 Any Goods to be returned to the Company in accordance with these terms and conditions shall not become the responsibility of the Company until receipt of the Goods by the Company.
8. Warranties and liability
8.1 No claim for damage in transit, shortage of delivery or loss of Goods will be entertained unless the Customer has given to the Company written notice of such damage, shortage or loss with reasonable particulars thereof within 7 days of receipt of the Goods or (in the case of total loss) of receipt of the invoice or other notification of despatch. The Company's liability, if any, shall be limited to replacing or (in its discretion) repairing such Goods and it shall be a condition precedent to any such liability that the Customer shall if so requested have returned damaged Goods to the Company within 14 days of such request. The Customer shall not be entitled to make any claim against the Company for consequential loss arising out of such damage, shortage or loss as aforesaid.
8.2 Save as otherwise provided in these conditions the Company's liability in respect of any defect in or failure of Goods supplied or work done is limited to replacing or (in its discretion) repairing or paying for the repair or replacement of Goods which within 7 days of delivery to the Customer are found to be defective by reason of faulty workmanship, parts or materials and in the event of any inaccuracy in any weight dimension or other description which has formed a representation or is part of the Contract the Company's liability in respect of any such inaccuracy shall exceed the price to the Customer of the Goods to which the description relates. Conditions precedent to the Company's liability hereunder shall be that as soon as reasonably practicable the Customer:
8.2.1 shall have given to the Company, within 7 days of the delivery to the Customer, written notice of the defect, failure or inaccuracy; and
8.2.2 shall have either returned the Goods to the Company or provided authority for the Company's servants or agents to inspect them, as the Company may request. The Company shall have no other or further liability in respect of any direct or consequential loss or damage sustained by the Customer arising from or in connection with any such defect, failure or inaccuracy as aforesaid.
8.3 Where the Company agrees to repair or replace Goods in accordance with the foregoing provisions of this paragraph any time specified for delivery under the Contract shall be extended for such period as the Company may reasonably require.
8.4 The Company shall not be responsible to the Customer for any loss or damage to the Goods or deterioration in quality of the Goods or the materials making up the Goods which may result from any act or omission on the part of the Customer including in particular but without prejudice to the generality of the foregoing, methods of display, storage, hiring, cleaning or care of the Goods, which may contribute to any such loss, damage or deterioration aforesaid.
8.5 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.6 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions.
8.7 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as caused beyond the Company's reasonable control:
8.7.1 an act of God, explosion, flood, tempest, fire or accident;
8.7.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.7.3 acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.7.4 import or export regulations or embargoes;
8.7.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
8.7.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.7.7 power failure or breakdown in machinery.
9.1 If any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person then, unless the claim arises from the use of any drawing, design or specification supplied by the Customer, the Company shall indemnify the Customer against all loss, damages, costs and expenses awarded against or incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim provided that:
9.1.1 the Company is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Customer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
9.1.4 the Customer shall do anything which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
9.1.5 the Company shall be entitled to the benefit of, and the Customer shall accordingly account to the Company for, all damages and costs (if any) awarded in favour of the Customer which are payable by, or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Customer at common law, the Company shall be entitled to require the Customer to take such steps as the Company may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Company is liable to indemnify the Customer under this paragraph.
10. Insolvency of the Customer
10.1 This condition applies if:
10.1.1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
10.1.3 the Customer ceases, or threatens to cease, to carry on business; or
10.1.4 anything analogous to any of the foregoing under the laws of any jurisdiction occurs; or
10.1.5 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2 If paragraph 10.1 applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and, if the Goods have been delivered but not paid for the price shall become due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.3 The Company may give 14 days' notice to the Customer to pay the purchase price or the balance thereof and if the Customer does not do so the Company may (without prejudice to any other rights it may have) treat itself as discharged from further performance of the Contract and deal with the Goods or any of them as its own property and claim damages from the Customer for any resulting loss.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 The Contract and any interest therein is not assignable by the Customer.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.5 The Contract shall be governed by the laws of England and the Customer agrees to submit to the non-exclusive jurisdiction of the English Courts.