1. Interpretation

1.1 In these Conditions:

 ‘BUYER’ means the person(s), company, hospital trust or regional health authority who purchases the Goods from the Seller

 ‘GOODS’ means the medical instruments or devices (including any instalment of the medical instruments or devices or any parts for them) which the Seller is to supply in accordance with these Conditions

 ‘SELLER’ means Pyramed Limited (Registered number 04227705) whose registered office is at Ashfield House, Resolution Road, Ashby De La Zouch, Leicestershire, LE65 1HW
 ‘CONDITIONS’ means the general terms and conditions of sale set out in this document

 ‘CONTRACT’ means the contract between the Seller and the Buyer for the purchase and sale of the Goods

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 Contract

2.1  These Conditions apply to (and will form part of) the  Contract between the Seller and the Buyer to the  exclusion of all other terms and conditions (including  terms or conditions endorsed on, delivered with or  contained in the Buyer’s acceptance, order,  confirmation of order, specification or other document).

2.2  Notwithstanding any terms or  conditions endorsed on,  delivered with or contained in the Buyer’s acceptance,  order, confirmation of order, specification or other  document, each order by the Buyer or acceptance by  the Buyer of a quotation from the Seller shall be  deemed to be an offer by the Buyer to buy Goods  subject to these Conditions.

2.3  No order placed by the Buyer shall be deemed accepted   and no Contract shall come into existence between the  Seller and the Buyer until such order is accepted by the  Seller or (if earlier) the Seller delivers the Goods to the  Buyer.

2.4  The Buyer shall be responsible to the Seller for ensuring the accuracy and completeness of the terms of any order (including any applicable specification) submitted by the Buyer.

2.5  No order placed by the Buyer can be withdrawn by the Buyer unless the Buyer notifies the Seller within 2 days’ of placing the order and no Contract may be cancelled by the Buyer except with the Seller’s written consent.

2.6  No variation to these Conditions or to any quotations from  the Seller shall be binding unless expressly agreed in  writing and executed by a duly authorised representative  on behalf of the Seller.

3. Description

3.1 The quantity, quality and description of the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller pursuant to Condition 2.3).

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them.  They shall not form part of the Contract and this is not a sale by sample.

4. Price of the Goods

4.1 The price of the Goods shall be as set out in the Seller’s  quotation or, where no price has been quoted, the price  listed in the Seller’s published price list current at the date of acceptance of the Buyer’s order.  All prices quoted in the quotation are valid for 30 days only or if earlier,  acceptance by the Buyer.

4.2 Provided that the Seller has not previously withdrawn the quotation, if the Buyer accepts a quotation after the expiration of the 30 days period referred to in Condition 4.1, the Seller reserves the right to increase the price of the Goods. Any increase shall be notified in writing to the Buyer and the Buyer has 5 days from receipt of the notice to reject the price increase.  If the Buyer rejects the price increase, the Contract shall be terminated forthwith and neither party shall have any further liability thereunder to the other party. 

4.3 Without prejudice to the foregoing Conditions, the Seller reserves the right at any time to increase the price of its Goods, but not so far as it varies the price of the Goods provided in any valid or subsisting quotation.

4.4 Except as otherwise stated under the terms of any  quotation or in any price list of the Seller, and unless  otherwise agreed in writing between the Buyer and the  Seller, all prices are given by the Seller on an ex works  basis.

4.5 The price for the Goods shall be exclusive of any Value Added Tax or other similar taxes or levies or insurance, which the Buyer shall be additionally liable to pay to the Seller.

4.6 Unless otherwise agreed, the Seller will charge the Buyer a delivery fee of £20.00 to deliver the Goods to the Buyer’s premises. Such fee will be charged in addition to the price of the Goods.

5. Terms of Payment

5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Buyer shall pay the price for the Goods within 30 days of the date of the Seller’s invoice.  The time for payment shall be of the essence.

5.2 The Seller shall invoice only in respect of:
5.2.1 such Goods which have been delivered, and
5.2.2 such other charges which have at the date of the invoice been incurred.

5.3 Payment of the price of Goods is due in pounds Sterling.

5.4 No payment shall be deemed to have been received until the Seller has received cleared funds.

5.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.

5.6 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.6.1 cancel the Contract or suspend any further deliveries to the Buyer; or
5.6.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.6.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid.

6. Delivery

6.1 Delivery of the Goods shall be made by the Seller, by the Seller delivering the Goods to the Buyer’s premises as notified in the written acknowledgment or in the Buyer’s order.

6.2 The Seller shall ensure that each delivery is  accompanied by a delivery note which shows, inter alia,  the quantity and description of Goods delivered and, in  the case of part delivery, the outstanding balance  remaining to be delivered.

6.3 The Seller may deliver the Goods by separate instalments.  Unless otherwise agreed, each separate instalment shall be invoiced and paid for in accordance with the provisions of Condition 5.

6.4 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

6.5 Any dates specified for delivery of the Goods are given in good faith as an estimate only. If no dates for delivery are specified, then delivery shall be within a reasonable time. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered by the Seller in advance of the specified delivery date upon giving reasonable notice to the Buyer.

6.6 Subject to the other provisions of these Conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.

6.7 If for any reason the Buyer fails to accept delivery of any of the Goods when they are delivered, or the Seller is unable to deliver the Goods because the Buyer has not provided appropriate instructions:-
6.7.1 risk in the Goods shall pass to the Buyer (including for  loss or damage caused by the Seller’s negligence);
6.7.2 the Goods shall be deemed to have been delivered; and
6.7.3 the Seller may store the Goods until delivery,  whereupon the Buyer shall be liable for all related costs  and expenses (including, without limitation, storage and  insurance).

7. Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery.

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 Buyer until the Seller 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 Seller to the Buyer for which payment is then due.

7.3 The Buyer’s right to possession of the Goods shall terminate immediately in respect Goods which have been delivered by the Seller to the Buyer and which have not been paid for by the Buyer, if any of the events listed in 10.1 occur.

7.4 Until such time as the property in the Goods passes to the Buyer, the Buyer shall:
7.4.1 hold the Goods on a fiduciary basis as the Seller’s  bailee;
7.4.2 store the Goods (at no cost to the Seller) separately  from all other goods of the Buyer or any third party  in such a  way that they remain readily identifiable as  the Seller’s property;
7.4.3 not destroy, deface or obscure any identifying mark or  packaging on or relating to the Goods; and
7.4.4 maintain the Goods in satisfactory condition and keep  them insured on the Seller’s behalf for their full price  against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of  insurance to the Seller.

7.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.6 The Buyer 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 Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8. Warranties

8.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.

8.2 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 6 months from delivery.
 
8.3 The above warranty is given by the Seller subject to the following conditions:
8.3.1 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing) and the manufacturer’s instructions for use, misuse (which shall include any use by a person other than a qualified medical practitioner or by a qualified medical practitioner who has not been trained to use the Goods or any other misuse by a qualified medical practitioner), or alteration or repair of the Goods without the Seller’s approval;
8.3.2 the Seller shall be under no liability where the Buyer continues to make any further use of such defective Goods after giving the Seller notice of the same under Condition 8.4;
8.3.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.3.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller as referred to in Condition 8.1 above.
 
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with description shall (whether or not delivery is refused by the Buyer) be notified in writing to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 5 days after discovery of the defect or failure.  The Buyer (if asked to do so by the Seller and where possible shall return the defective Goods to the Seller’s place of business at the Seller’s cost, so that the Seller can examine the Goods.

8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet description is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace or repair the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.

8.6 Any Goods replaced shall belong to the Seller and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 6 month warranty provided in Condition 8.2.

8.7 As otherwise provided in these Conditions and except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term implied by statute or common law, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.

8.8 Subject to Condition 8.7:
8.8.1 The Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of Goods; and
8.8.2 The Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

8.9 The Seller shall not be liable to the Buyer 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1 Acts of God, explosion, flood, tempest, fire or accident;
8.9.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.9.3 import or export regulations or embargoes;
8.9.4 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.5 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.6 power failure or breakdown in machinery.

9. Indemnity

9.1 If any claim is made against the Buyer 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 Buyer, the Seller shall indemnify the Buyer against all claims, losses and liabilities made against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Buyer shall promptly notify the Seller of any proceedings which would give rise to the claims, losses and liabilities described in this Condition 9;
9.1.2 the Buyer shall give the Seller full control of any such proceedings or negotiations in connection with any such claim and provide all reasonable assistance for the purposes of any such proceedings or negotiations; and
9.1.3 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this Condition 9.

10. Insolvency

10.1 Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to suspend the Contract or cancel the Contract or suspend any further deliveries under the Contract without liability to the Seller if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or 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 Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business.

11. Assignment

11.1 The Seller may assign the Contract or any part of it to any person, firm or company.

11.2 the Buyer shall not be entitled and assign the Contract or any part of it without the prior consent of the Seller, such consent to be agreed in writing by a duly authorised representative on behalf of the Seller.

12. General

12.1 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.

12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.3 A person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall not have the right (whether under the Contracts (Rights of Third Parties) Act or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties such agreement must refer to the Condition 12.3

12.4 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.

12.5 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society in England and Wales.

12.6 The Contract shall be governed by the laws of England, and the parties agree to submit to the exclusive jurisdiction of the English courts.

EFFECTIVE:  1 APRIL 2006