- DEFINITIONS AND GENERAL
The following expressions shall have the following meanings when used in these Conditions:
Bespoke Specification: has the meaning given to it in clause 3.1;
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 2.7;
Contract:b> any and each contract between Orthomed and the Customer for the sale and purchase of Goods in accordance with these Conditions;
Customer:b> the individual, customer or firm who purchases the Goods from Orthomed;
Delivery: has the meaning given to it in clause 4.5;
Delivery Location: has the meaning given to it in clause 4.3;
Force Majeure Event:b> an event beyond the reasonable control of a party, including, without limitation, an act of God, fire, flood, earthquake, windstorm or other natural disaster; destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; law, judgment, order, decree, embargo, blockade, labour dispute including but not limited to strike, lockout or boycott; interruption or failure of utility service including but not limited to electric power, gas, water or telephone service or default of suppliers or subcontractors;
Goods: Orthomed Goods and Third Party Goods;
Orthomed Goods: goods which are manufactured by Orthomed;
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of Orthomed’s quotation, the Customer’s order received by phone, fax and/or email, or overleaf, as the case may be;
Orthomed: Orthomed (UK) Limited, a company registered in England and Wales (company number 04303031) whose registered address is at West House, King Cross Road, Halifax, West Yorkshire HX1 1EB;
Specification: any specification for the Goods specified by Orthomed from time to time;
Third Party Goods: goods which are manufactured by a third party and not Orthomed;
Warranty Period: has the meaning given to it in clause 5.1; and
Website: Orthomed’s website at www.orthomed.co.uk as updated from time to time.
- Reference to any statutory provision includes a reference to that statutory provision as from time to time amended, extended or re-enacted and any regulation made under it.
- The headings in these Conditions are for ease of reference only and shall not affect its construction or interpretation.
- A reference to a party includes its personal representatives, successors or permitted assigns.
- A reference to writing or written includes faxes and emails.
- The following expressions shall have the following meanings when used in these Conditions:
- BASIS OF CONTRACT
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any Bespoke Specification are complete and accurate.
- The Order shall only be deemed to be accepted when Orthomed issues a written acceptance of the Order or Orthomed delivers the Goods or notifies the Customer that they are ready to be delivered, at which point the Contract shall come into existence.
- The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Orthomed which is not set out in the Contract.
- Any samples, drawings, descriptive matter, or advertising produced by Orthomed and any descriptions or illustrations contained in Orthomed’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
- A quotation for Goods given by Orthomed shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
- Orthomed shall be entitled by notice to the Customer to revise these Conditions at any time to comply with any change in law or practice applicable to or affecting the Goods or to reflect a change in any policy of Orthomed.
- The Goods are listed in Orthomed’s catalogue or on the Website (as modified by any applicable Specification), save where the Customer orders goods which are ‹;made to measure›; or in some way altered at the Customer’s request to tailor the Goods to their specific need (“Bespoke Specification”).
- To the extent that the Goods are to be manufactured in accordance with any Bespoke Specification, the Customer shall indemnify Orthomed against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Orthomed in connection with any claim made against Orthomed for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Orthomed’s use of the Bespoke Specification. This clause 3.2 shall survive termination of the Contract.
- Orthomed reserves the right to amend the Specification or Bespoke Specification at any time if required by any applicable statutory or regulatory requirements.
- All intellectual property rights arising out of or in connection with the Goods shall at all times remain vested in Orthomed or its licensors (as applicable). This clause 3.4 shall survive termination of the Contract.
- Each delivery of the Goods shall be accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
- Orthomed shall arrange for the Goods to be sent to the location set out in the Order or such other location as the parties may agree (“Delivery Location”).
- The Goods shall be sent by the delivery service selected by the Customer via the Website or as agreed by the parties when the Order is placed.
- Delivery is completed on the arrival of the Goods at the Delivery Location including where the Goods are left in a safe storage place or alternative location as agreed to by the Customer (“Delivery”).
- Any dates quoted for delivery are approximate only, and time for delivery is not of the essence. If Orthomed fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Orthomed shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Orthomed with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Customer fails to take or accept delivery of the Goods within three Business Days of Orthomed notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Orthomed’s failure to comply with its obligations under the Contract:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Orthomed notified the Customer that the Goods were ready; and
- Orthomed shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
- Orthomed may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- All claims for faulty or missing Goods should be reported to Orthomed no later than 3 Business Days from Delivery. In the case of obvious shortage and/or suspected damage to the Goods, the delivery note must be signed accordingly by the person accepting the delivery on behalf of the Customer.
- Where the Goods are alleged to be faulty or damaged, the Customer must return such Goods (at Orthomed’s cost) to Orthomed for inspection along with a copy of the invoice and delivery note. If Orthomed confirms that the Goods are faulty and/or damaged then clause 5.2 shall apply.
Orthomed warrants that on Delivery and for a period of 12 months from the date of Delivery (“Warranty Period”) the Orthomed Goods shall:
- conform in all material respects with their description and any Specification or Bespoke Specification;
- be free from material defects in design, material and workmanship; and
- be of satisfactory quality.
Subject to clause 5.3, Orthomed shall, at its option, repair or replace any Orthomed Goods or refund the price if the Orthomed Goods do not comply with the warranty in clause 5.1, provided that:
- the Customer gives notice in writing to Orthomed during the Warranty Period within a reasonable time of discovery of the fault;
- Orthomed is given a reasonable opportunity to examine such Orthomed Goods; and
- the Customer (if asked to do so by Orthomed) returns such Orthomed Goods to Orthomed at Orthomed’s expense.
Orthomed shall not be liable for any Orthomed Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
- the Customer makes any further use of such Orthomed Goods after giving notice in accordance with clause 5.2;
- the defect arises because the Customer failed to follow Orthomed’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Orthomed Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of Orthomed following any drawing, design or specification supplied by the Customer including any Bespoke Specification;
- the Customer alters or repairs such Orthomed Goods without the written consent of Orthomed;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Orthomed Goods differ from the Specification or Bespoke Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
The Customer acknowledges that Orthomed is not responsible for the manufacture and supply of Third Party Goods. As such, the only warranties provided with Third Party Goods are those provided by the relevant manufacturer. If any Third Party Goods are found to be defective:
- the Customer must promptly notify Orthomed and if requested, return the defective Third Party to Orthomed (at the Customer’s cost); and
- Orthomed shall use all reasonable endeavours to exercise its contractual rights and remedies against the relevant manufacturer and shall pass on to the Customer any remedies received from the manufacturer in the form of either a refund or replacement Third Party Goods.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- Except as provided in this clause 5, Orthomed shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
- These Conditions shall apply to any repaired or replacement Goods.
- Orthomed warrants that on Delivery and for a period of 12 months from the date of Delivery (“Warranty Period”) the Orthomed Goods shall:
- TITLE AND RISK
- Risk in the Goods shall pass to the Customer on completion of Delivery.
- Title in the Goods shall not pass to the Customer until Orthomed receives payment in full and in cleared funds for the Goods in accordance with clause 7.
Until title to the Goods has passed to the Customer, the Customer shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Orthomed property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify Orthomed immediately if it becomes subject to any of the events listed in clauses 9.1.2 to 9.1.9 inclusive; and
- give Orthomed such information relating to the Goods as Orthomed may require from time to time.
- Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Orthomed receives payment for the Goods.
If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clauses 9.1.2 to 9.1.9 inclusive, then, without limiting any other right or remedy Orthomed may have:
- the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
Orthomed may at any time:
- require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- PRICE AND PAYMENT
- Unless otherwise agreed, the price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Orthomed’s published price list in force as at the date of Delivery.
- Orthomed may, by giving notice to the Customer at any time up to 2 Business Days before delivery, adjust the price of the Goods to reflect any change in the cost of the Goods that is due to:
- any factor beyond Orthomed's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or Bespoke Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give Orthomed adequate or accurate information or instructions.
- The price of the Goods is exclusive of VAT, which the Customer shall pay in addition on receipt of a valid VAT invoice.
- The price is inclusive of the costs of packaging and delivery of the Goods within the UK. For all other delivery destinations please see the Website or contact Orthomed for further details.
- Orthomed may invoice the Customer for the Goods on or at any time after Delivery. Unless agreed otherwise in writing, the Customer shall pay the invoice in full and in cleared funds within 30 days from the date of the invoice. Payment shall be made to the bank account nominated in writing by Orthomed from time to time. Time for payment is of the essence.
- The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Orthomed may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Orthomed to the Customer.
- RETURN OF THE GOODS
The Customer may only return Goods:
- in response to a recall instigated by a manufacturer;
- where the Goods have been offered on a pre-arranged sale or return basis; or
- where Orthomed agrees, in advance of their return, to accept Goods not covered by clauses 8.1.1 and 8.1.2 above.
- Where the Customer returns the Goods under clause 8.1.2 or 8.1.3, a handling charge may be applied by Orthomed of up to 20% of the price of the Goods being returned. The Customer shall either be invoiced for such handling charge or if the Customer has already paid for the Goods, Orthomed may deduct such handling charge from the monies to be refunded to the Customer.
- All Goods returned pursuant to clauses 8.1.2 and 8.1.3 must be returned in the original packaging and not tampered with in any way, along with the original invoice or delivery note.
- The Customer may only return Goods:
Without limiting its other rights or remedies, Orthomed may terminate the Contract if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;
- the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
- the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
- (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
- (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
- (being an individual) the Customer is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.2 to clause 9.1.9 (inclusive);
- (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
- the Customer enters into a financial position which deteriorates to such an extent that in Orthomed’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
- the Customer fails to pay any amount due under this Contract on the due date for payment.
- On termination of any Contract for any reason the Customer shall immediately pay to Orthomed all of Orthomed’s outstanding unpaid invoices and interest.
- Termination of any Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination.
- Any provision of any Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- Without limiting its other rights or remedies, Orthomed may terminate the Contract if:
- LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude Orthomed’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation; or
- any matter in respect of which it would be unlawful for Orthomed to exclude or restrict liability.
- Subject to clause 10.1, Orthomed shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any Contract; and
- Subject to clause 10.1, Orthomed’s total liability to the Customer in respect of all other losses arising under or in connection with any individual Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods to which the claim relates.
- The Goods are sold on the understanding that the Customer is solely responsible for determining the suitability of the Goods for the purposes for which the Customer intends to use them and Orthomed accepts no liability in respect of any use of the Goods or any advice given in this respect.
- The Customer shall indemnify Orthomed against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Orthomed in connection with any claim made against Orthomed by a third party arising out of or in connection with the Customer’s use of the Goods.
- This clause 10 shall survive termination of the Contract.
- Nothing in these Conditions shall limit or exclude Orthomed’s liability for:
- Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
- The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Orthomed.
- If any provision or part-provision of the Contract 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 the Contract.
- A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy or prevent or restrict the further exercise of that or any other right or remedy.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax, or email.
A notice or other communication shall be deemed to have been received:
- if delivered personally, when left at the address referred to in clause 11.5;
- 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;
- if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
- or, if sent by fax or email, one Business Day after transmission.
- No one other than a party to this Contract shall have any right to enforce any of its terms.
- Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Orthomed.
- The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation, shall be governed by English law. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation.
Terms & Conditions
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