In these conditions:-
“Company” means Dolby Medical Home Respiratory Care Ltd., Lomond Court, Castle Business Park, Stirling, FK9 4TU. “Customer” means a person who accepts a quotation of the Company for the sale of the Goods or whose order for the Goods is accepted by the Company. “Goods” means the Goods and or Services (including any installation if the Goods or any parts for them) which the Company is to supply in accordance with these conditions. “Conditions” means the standard terms and conditions of trading set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Customer. “Contract” means the contract for the purchase and sale of the Goods. “Writing” includes telex, cable, electronic mail, facsimile transmission and comparable means of communication.
Any reference in these Conditions to any provision of a statute or statutory instrument shall be construed as a reference to such provision as amended or re-enacted. The headings in these Conditions are for convenience only and shall not affect the interpretation thereof.
Unless otherwise specifically agreed in writing by a Director of the Company, these Conditions which supersede any earlier sets of conditions appearing on the Company’s quotations or elsewhere shall override any terms of conditions stipulated incorporated or referred to by the Customer whether in order or in any negotiations, and no verbal quotation or undertaking will be binding on the Company. All orders are accepted and executed on the understanding that the Customer is bound by the Conditions. The Conditions shall prevail over any other terms including the customers own terms and conditions which shall not apply or be binding on the Company.
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 by the Company at any time without any liability on the part of the Company.
Unless otherwise specified the quotation of the Company is only open for acceptance during a period of 30 days from the date of issue of such quotation.
Quoted prices relate to the quantity of Goods, subject to the quotation and the Company reserves the right to amend the quoted price, if a different quantity of Goods is ordered.
Unless otherwise quoted or agreed, the Company’s prices do not include Value Added Tax, or any other tax, levy, duty or surcharge which may be payable by you in addition to a contract price.
The Company’s list prices are subject to alteration at any time without notice.
The price of the Goods shall conform to the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s price list, current at the date the Company receives the order.
The Company reserves the right, by giving notice to the Customer at any time before delivery, 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 prejudice to the foregoing generalities, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increases in the costs of labour, materials or other costs of manufacture, any change in delivery dates quantities or specifications for the Goods which is requested by the Customer or any delay caused by instructions of the Customer or failure of the Customer to give the Company adequate information or instructions).
Except as otherwise stated under the terms of any quotation or in any price list of the Company, and unless otherwise agreed in Writing between the Customer and the Company, all prices given by the Company are on an ex-works basis, except as may otherwise be agreed by the Company at its discretion, 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 expenses and, if delivery is effected outside the United Kingdom, all customs charges, duties, taxes, costs and expenses of whatsoever nature connected therewith.
Unless otherwise stated, installation if not included in the quotation but arrangements may be made, at extra cost, for the requisite skilled supervision of the installation or complete responsibility for installation.
When ordering medical equipment the references numbers should be quoted in all cases where such are appended to the apparatus listed in the Company’s catalogue. If a special quotation has been made the quotation must be stated. All telephone telex, cable, electronic mail and facsimile orders should be confirmed by an official order or letter. All Communications relating to orders should specify the number and date of order, description of the medical equipment/consumables and catalogue reference number. The Company reserve the right to reject any order issued by the Customer for any reason.
The quantity, quality and description of and any specification for any Goods shall be those set out in the Company’s quotation (if accepted by the Customer) the Customer’s order (if accepted by the Company).
The Company reserves the right to make any changes in the specification of the Goods which : are required to conform with any applicable safety or other statutory requirements, any costs of special modifications shall be paid by the Customer to the Company : do not materially affect their quantity or performance.
6. LIMITS OF CONTRACT
The Company’s quotation includes only such Goods and work as are specified therein.
The Company will make any endeavour to execute all orders at prices ruling at the time of acceptance, but reserve the right to alter prices to those ruling at the time of delivery pursuant to clause 4.4 above.
The Conditions shall be limited to such as are expressed in writing, to the exclusion of all oral expressions whether of advice or otherwise.
7. DRAWINGS AND TECHNICAL SPECIFICATIONS
The Customer shall be deemed to rely upon his own judgment as to the quality and the fitness of the Goods for their intended use. All descriptive and technical specifications, drawing, catalogues, illustrations and particulars of weight and dimensions submitted with or prior to a quotation are approximate only and none of these shall form part of the contract. After receipt of any order, technical drawings will be supplied where necessary to enable the Customer to prepare foundations and arrange for the supply of services. Drawings and technical specifications supplied by the Company are confidential and the Customer will not communicate the contents thereof to third parties without the consent in writing of the Company.
8. 8. CREDIT LIMITS
Where the Company has granted the Customer a credit facility, the Company may withdraw the same at any time without either giving any reason for so doing or thereby incurring any liability to the Customer. If the Customer takes Goods from the Company in excess of the Customer’s credit limit, the Company may require payment on demand for such excess Goods.
9. 9. PAYMENT
The Company’s invoices are due for payment strictly in accordance with the terms shown on the Order and the Invoice. Time shall be of the essence in making payments.
Except as the Company’s quotation/estimate may provide, no discounts are allowable, or may be taken, against amounts invoiced by the Company, nor shall the Customer be entitled to any commission or rebate in respect thereof, and this notwithstanding any previous course of dealing between the Company and the Customer.
Payment by cheque shall not be deemed to constitute payment for the purposes of this contract until the cheque is cleared through the Company’s bank account.
(a) Where no other terms of payment have been specified the Company terms of payment are net cash, payment in full at the Company’s offices to be made within 28 days from the invoice date.
(b) In the event of the Customer failing to comply with the Company’s terms of payment the Company reserves the right to (I) discontinue forthwith the provision of any further Goods, services, storage of Goods, and (II) charge interest on the outstanding balance or balances of monies owing to the Company, at the rate of 2 per cent over the Bank Base Rate for each month exceeding the agreed terms of payment applicable to the contract.
When the Company is required to deliver Goods, the Company shall have the sole discretion as to the mode of transport to be adopted.
Delivery of Goods by the Company does not include the provision of labour and equipment for unloading, which the Customer shall be liable to provide, at the Customer’s own cost.
When the Company is required to deliver Goods, the Company’s liability for doing so shall be limited to delivering them as near to the place where the Goods are required as a safe hard road permits. If, in any particular case, the Company should agree to relax this condition, the relaxation shall be deemed to have given in consideration of an indemnity from the Customer against all losses, costs and expenses which the Company may incur or pay as a result of such relaxation.
Delivery of Goods shall be made by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
The Company shall be entitled to make deliveries of the Goods in instalments from time to time.
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 repudiated. If any Goods supplied shall fall short of the number ordered, or shall be wrongly priced or otherwise defective in any way, this shall not entitle the Customer to delay or withhold payment for any of the other Goods supplied, and payment shall be made therefore in accordance with the provisions of this Agreement.
If the Company fails to deliver the Goods for any reason other than beyond the Company’s reasonable control or the Customer’s fault, and if 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.
If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time, if any, stated for delivery (otherwise than by reason of any cause beyond the Customers 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:-
(a) Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
(b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Customer for any Shortfall below the price under the Contract.
11. PASSING OF PROPERTY AND RISK
Risk of damage to or loss of the Goods shall pass to the Customer:-
(a) In the case of Goods to be collected/uplifted from the Company’s premises, when the Goods leave the Company’s premises.
(b) In the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take Delivery of the Goods, the time when the Company has tendered delivery of the Goods.
Notwithstanding delivery of the Goods to the Customer, ownership of the Goods (both legal and equitable) will not pass but will remain with the Company. However immediately on delivery to the Customer or into custody on the Customers behalf (whichever is the sooner) the risk in the Goods will pass to the Customer. Property in the Goods will pass to the Customer when all outstanding debts owed by the Customer in respect of the Goods the subject of this contract have been paid in full. Until that time the Customer is to hold the Goods in a fiduciary capacity as custodian on behalf of the Company, and shall be responsible for adequately insuring the Goods, and if required, shall store the Goods in such a way that they can be recognised as being held in a fiduciary capacity.
Notwithstanding that the Customer may hold the Goods in a fiduciary capacity only, the Company will allow the Customer the power to use the Goods in its normal course of business and to sell the Goods to third parties and to deliver to them, on the condition that so long as the Customer is indebted to the Company, the Customer shall assign the benefit of any claims against such third parties to the Company; and in any event, if the Customer receives the proceeds of such sales from third parties, such proceeds are to be held by the Customer for the account of the Company (who shall be permitted to trace such proceeds) to the extent that the Customer is indebted to the Company under this contract.
If payment by the Customer under this contract becomes overdue, in whole or in part, or if the Customer shall commit any other breach of this contract or any act of insolvency (as hereinafter defined), the Company shall be entitled (without prejudice to any of its other rights) to treat this contract as discharged, and to repossess the Goods the subject of this contract, or the mixed Goods, or any of them, as the case may be, and to enter upon any premises where the Goods may be situated for that purpose. The Customer shall, for the purposes of this clause, be deemed to commit an act of insolvency if any distress or execution shall be levied upon its property or assets, or if it shall make or offer any arrangement or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against it, or if the Customer is a limited Company and any resolution or petition to wind up such Company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver or administrative receiver (within the meaning of the Insolvency Act 1986), of such Company’s undertaking property or assets or any part thereof shall be appointed; or if in the sole discretion of the Company it appears to the Company that the financial position of the Customer has become unsatisfactory or impaired.
In the event that the Company repossess the Goods, the Customer shall be liable (notwithstanding the discharge of the contract) to pay the difference between the price of their Goods and their value on repossession, and in the event of the Company being entitled to repossess the Goods, but being unable to do so for any reason whatsoever, the Customer shall pay to the Company the full price thereof, less in each case any amount previously paid by the Customer for the Goods under this Contract.
Any receiver or liquidator appointed over the assets of the Customer shall pay into a separate bank account any sums received from the third parties in respect of sales to them of the Goods by the Customer, up to the amount of any indebtedness of the Customer to the Company under this contract, for the sole benefit of the Company.
Except where otherwise stated, delivery is ex-works, in the event that delivery is to be elsewhere and the Company is unable to deliver, delivery shall be deemed to have taken place when the Goods have been placed alongside the Customer; vessel or delivered to the customer’s premises or to such other place as stated by us in writing.
Claims for non-delivery, shortage in delivery and damage in transit will be entertained only if the Customer observes whichever of the following procedures is appropriate. Non-delivery - to be notified in writing to the Company within 14 days of the invoice date on the Company’s invoice. Short delivery and damage transit - to be notified in writing to both the Company and the carrier within 3 days of receipt of the Goods, followed by a detailed claim to be made both against the Company and against the carrier within 14 days of the date of the Company’s advice of dispatch.
When delivery is taken without the Goods being examined, the Customer must endorse any receipt or
acknowledgement of delivery “not examined” otherwise the Customer shall have no claim against the Company of the carrier.
Goods alleged to have been damaged in transit shall be held by the Customer for inspection by or on behalf of the Company and the carrier for a period, if the point of delivery of the Goods is within the United Kingdom, of 14 days after delivery to the Company of the Customer’s detailed claim in respect of the damage or, if the point of delivery of the Goods is outside the United Kingdom, of 45 days after delivery of such claim. Where Goods are not so held the Customer shall lose and forfeit and right to claim against the Company or the carrier.
Goods sold to the Customer may only be returned to the Company provided that the following conditions have been met:-
(a) A Credit Return Number (CRN) must be obtained from the Company prior to any return and quoted in all correspondence.
(b) The Goods must be in a new and unused condition, of current type or model and not been made or obtained to the Customer’s special order.
(c) Return to the Company is made within 3 months of the invoice date. All Goods returned will be subject to the payment of the Company’s handling charge.
If the Customer shall return the Goods for any reason other than a defect in each of the Goods returned, then the Company shall be entitled to charge the Customer a handling charge of 20% of the price of the Goods so returned, provided that the Company shall be at liberty to refuse to accept any returned Goods which are not in good condition or in respect of which the Customer has not complied with any instruction relating to the return of Goods issued by the Company in writing.
13. CONSEQUENTIAL LOSS
Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty under common law, or under the express terms of the Contract for any consequential Loss or damage, costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of Goods and/or services or their use or resale by the Customer, except as expressly provided in these Conditions.
14. TIME FOR PERFORMANCE
No provision or stipulation as to the time within which the Company shall perform its obligations under a contract shall be, or be deemed to be, of the essence of the contract.
The Company shall not be liable to the Customer for any loss or damage sustained by the Customer as a result of any delay in performing or any failure to perform any of the Company’s obligations under this contract where that delay or failure is due to any event or circumstance beyond the Company’s reasonable control (including, but without limitations, Acts of God, war, armed conflict, riot, industrial action involving employees of the Company or a third party, defaults by the Company’s suppliers or sub-contractors or any measures of a governmental or intergovernmental authority).
In the event that the Company incurs any extra cost on account of delays, interruption or suspension of work due to the customers instructions or lack of instructions or due to any other reasons outside the control of the Company, the Company reserves the right to increase the contract price accordingly.
15. WARRANTIES AND LIABILITY
Subject to the condition set out below the Company warrants, in respect of durable Goods (but not in respect of disposable Goods), that such Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period specified by the manufacturer from the date of delivery.
16. CANCELLATION OF CONTRACT
The Customer may not cancel any order except with the written consent of the Company and upon terms which will indemnify the Company against all loss.
If performance by the Company of its obligations under this contract shall be hindered or prevented by industrial dispute, accident, breakdown of machinery, shortage of materials, export or import restrictions, or any other cause whatsoever beyond the reasonable control of the Company, the Company shall be entitled by notice in writing to the Customer to terminate the contract but without prejudice to the liabilities of either party accrued before the date of termination.
The copyright subsisting of which subsists in all documents, drawings, specifications, designs, programme or any other material prepared by the Company whether readable by humans or machines shall belong to the Company absolutely and shall not be reproduced or disclosed or used in their original or translated form by the Customer or any third party without the Company’s written consent for any purpose other than that for which they were furnished.
Notwithstanding anything to the contrary herein contained any computer software disc or any other magnetic media (“the Software”) supplied by the Company to the Customer is and shall remain the property of the Company. Such software is made available to the Customer strictly in accordance with the following non-exclusive license:-
(a) The Customer may only use the Software on the single instrument of the Company’s manufacture on which the Customer first uses such software (“the instrument”)
(b) The Customer may not copy such software
(c) The Customer may transfer this license and the software together with (but in no circumstances separately from) the instrument to a third party provided that:-
i) Such third party agrees to all the terms of this license.
ii) The Customer notify us of the name and address of third party and the serial number of the instrument.
iii) The Customer do not retain any copies of the software
(d) The Customer may use the software solely on the instrument provided that the Customer can comply with all the terms of this license. Upon termination for breach of this license the Customer agrees to destroy or return the software to the Company.
Descriptive matter contained in catalogues, brochures and any other publication or display is believed correct and up-to-date, but it is not warranted unless specifically confirmed in writing by the Company.
Except where Goods are supplied on the express advice of the Company, given in writing, that they are suitable for any particular purpose, it shall not be a term of contract that Goods are sold as fit for any particular purpose, and this notwithstanding that the Company may have, or be deemed to have knowledge of the purpose for which the Goods are required.
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.
f 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.
The Customer may not assign its rights or liabilities under any contract with the Company without the prior consent in writing of the Company.
Failure by the Company to enforce a term of contract as soon as it may be enforced shall not prevent the subsequent enforcement of that or any other terms of the contract.
Any notices given hereunder by the Company may be served personally or left at the residence or place of business of the Customer or may be sent by post in which case notice shall be deemed to have been received by the Customer 48 hours after the date of despatch of same by the Company.
The contract between the Company and the Customer shall be governed by and construed in accordance with the laws of Scotland and the Company and the Customer hereby submit to the non-exclusive jurisdiction of the Scottish Courts.
Dolby Medical Home
Respiratory Care Ltd
North Suite, Lomond Court,
Castle Business Park, Stirling,
Registered in Scotland
Southpoint, Old Brighton Road,
Gatwick, West Sussex,
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