STANDARD CONTRACTUAL TERMS AND CONDITIONS OF SALE AND SUPPLY
1.1 In these Terms:
“Buyer” means the person who accepts a quotation or proposal from THCL directly (or from a Nominated Supplier, where appropriate) for the sale of THCL’s own (or THCL Portal third party offered Goods, Services or Products where through a Nominated Supplier), or whose order for those Goods, Services and/or Products is accepted by THCL, which Buyer, by express or implied acceptance, or online registration, has accepted these Terms with THCL, subject to the content and terms of any Special Conditions contained in any Appendix attached hereto which is signed and dated by THCL and the Buyer;
“Contract” means any arrangement for the supply and acquisition of the Goods, Services and/or Products, together with all related orders or requests made time to time by the Buyer to the THCL Contracting Party, subject at all time to these Terms and Conditions;
“Goods” means any and all goods (including any instalment of the goods or any parts for them) which THCL is to directly supply (or facilitate the supply of through the THCL Portal or otherwise), and which supply is subject to these Terms and Conditions, at the price levels and payment timings contained in the Terms or on the THCL Portal at point of order;
“Intellectual Property” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
“THCL Contracting Party” means Dimedi Limited (“THCL”);
“Nominated Supplier” shall mean a supplier with whom Buyers elect to contract directly, and on an arm’s length basis, or through THCL, for the purchase of Goods, Products or Services through their authorised use of the THCL Portal from time to time, having electronically or by implication agreed to these Terms with THCL;
“Parties” means THCL and the Buyer;
“Products” means any and all products purchased or supplied via directly or through the THCL Portal to the Buyer from time to time and which purchase and/or supply is subject to these Terms with THCL, at the price levels and payment timings specified;
any and all services which THCL is to directly supply (or facilitate the supply of through the THCL Portal or otherwise) in accordance with these Terms or to the Buyer from time to time and which supply is subject to these Terms with THCL, at the price and payment timings contained in the Terms;
“Terms” means the Standard Contractual Terms and Conditions of Sale and Supply set out in this document (together with any Appendix or reasonable amendments from time to time brought to the attention of the Buyer), and in the event that there is a conflict between the terms of these standard Contractual Terms and Conditions of Sale and Supply, and such Special Conditions as are contained in any Appendix attached and agreed/executed by THCL and the Buyer, the terms of the Appendix shall prevail;
“THCL Portal” means any THCL managed online Marketplace or facility which a Buyer may from time to time access and utilise, subject to initial and continuing access and use constituting an acceptance of these Terms with THCL;
“Writing”, and any similar expression, includes facsimile transmission and electronic mail;
2. Basis of the sale
2.1 THCL shall sell and the Buyer shall purchase from THCL the Goods and/or Products and/or Services subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted by THCL, or any such order is made or purported to be made, by the Buyer. At the expiry of any fixed or initial term benefits offer referred to, or contained, on the THCL Portal or in any Appendix, costs for the Goods and/or Products and/or Service shall be renegotiated between THCL and the Buyer, or otherwise be subject to the then prevailing costs applied by THCL (or a Nominated Supplier, as appropriate) to those Goods and/or Products and Services;
2.2 These Terms may be subject to change from time to time and a Buyer’s continued use of the TCHL Portal and/or continued course of dealing with TCHL shall constitute acceptance of these Terms, as amended by TCHL from time to time. .
2.3 THCL’s employees and agents are not authorised to make any representations or give any advice or
recommendation concerning the Goods, Services and/or Products unless confirmed by authorised representatives of THCL in Writing. By entering into or accepting the Terms, the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for death or personal injury.
2.4 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 THCL or any Nominated Supplier on the THCL Portal, shall be subject to correction without any
liability on the part of THCL, and any loss or damage to THCL rectified by the Buyer without delay.
3. Orders and specifications
3.1 No order submitted by the Buyer from time to time shall be deemed to be accepted by THCL unless and until confirmed in writing by THCL or through processing on the THCL Portal, as appropriate.
3.2 The Buyer shall be responsible to THCL for ensuring the accuracy of the terms of any future order (including any
applicable specification) submitted by the Buyer, and for giving THCL (or Nominated Suppliers, as the case may be) any necessary information and support relating to the Goods, Services or Products within a sufficient time to enable THCL (or Nominated Suppliers, as the case may be) to perform contractual duties in accordance with their terms and relevant safety regulations.
3.3 The quantity, quality and description of the Goods, Services and/or Products which the Buyer sources from THCL directly and any specification for them shall be as
set out in THCL’s written or online quotation or proposal or the Buyer’s order (if accepted by THCL).
3.4 If the Contract is to be performed by THCL in accordance with a specification submitted by the Buyer, the Buyer shall indemnify THCL against all loss, damages, costs and expenses whatsoever awarded against or incurred by THCL or its officers, employees, affliliates, group companies or representatives in connection with, or paid or agreed to be paid by THCL in settlement of, any claim for infringement of any rights of any other person which results from THCL’s use of the Buyer’s specification or satisfaction of the Buyer’s order.
3.5 THCL reserves the right to make any changes in the specification of the Goods, Services and/or Products which are required to conform with any applicable statutory requirements or, where the Goods, Services and/or Products are to be supplied to THCL’s specification, which do not materially affect their quality or performance.
3.6 No express or implied order which has been accepted by THCL for Goods, Products or Services specifically may be cancelled by the Buyer except with the agreement in
Writing of THCL and on terms that the Buyer shall fully indemnify THCL and its officers, agents and its officers, employees, affiliates, group companies and representatives, in full against all loss (including loss of
profit), costs (including the cost of all labour and materials used), damages, charges, liabilities under forward supply orders placed by THCL to facilitate compliance with actual orders or orders reasonably anticipated by THCL through historical course of trade from time to time, and other related expenses incurred by THCL as a result of any cancellation for any reason(s) whatsoever.
3.7 Any description given or applied to the Goods, Services and/or Products is given by way of identification only and the use of such description shall not constitute a sale by description, unless the Buyer is advertising its needs on the THCL Portal, whereupon it shall indemnify THCL against any and all losses resulting from any description which is misleading or inaccurate. For the avoidance of doubt, the Buyer affirms that it does not in any way rely on any description provided by THCL, whether online or otherwise, when entering into the contract. Where a sample of the Goods, Services and/or Products is shown to and inspected by the Buyer, the parties hereto accept that such a sample is representative in nature and the bulk of the order may differ slightly as a result of the manufacturing or sourcing process.
3.8 The Buyer warrants and undertakes to THCL not to misuse the THCL Portal and to fully indemnify THCL against any and all losses whatsoever arising as a direct or indirect result of such misuse by the Buyer (including professional costs), whether financial, reputation, intellectual property or otherwise based.
4. Price of the goods
4.1 The price of the Goods, Services and/or Products shall be the quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the THCL published price list current at the date of acceptance of the order, or that of a Nominated Supplier in the case of the THCL Portal. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by THCL without giving notice to the Buyer.
4.2 THCL reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods, Services and/or Products to reflect any increase in the cost to THCL which is due to any factor beyond the control of THCL (such as, without limitation, any foreign exchange fluctuation, third party error or omission, currency regulation, alteration of duties, significant increase in the costs of labour, materials, supply chains or other costs of manufacture or supply), any change in delivery dates, quantities or specifications for the Goods, Services and/or Products which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give THCL (or, in the case of a transaction via the THCL Portal, a Nominated Supplier) adequate information, support or instructions.
4.3 Except as otherwise stated in THCL’s quotation or in any price list of THCL or a Nominated Supplier, and unless otherwise agreed in
Writing between the Buyer and THCL, all prices are given on an ex works basis, and where THCL
agrees to deliver the Goods, Services and/or Products otherwise than at THCL’s premises, the Buyer shall be liable to pay THCL’s charges for transport, packaging, administration and insurance, to ensure that delivery mode selected by the Buyer will not pose a danger to any person(s), pets or property and to indemnify THCL against any and all losses it suffers as a result of the Buyer’s failure to comply with this clause 4.3.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to THCL.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and THCL from time to time and if payment is not made on the THCL Portal, THCL may invoice the Buyer for the price of the Goods, Services and/or Products on or at any time after online purchase or delivery of the Goods/Products or performance of the Services (as the case may be), and THCL may deduct without limitation such sums to which it reasonably considers it is due prior to onward transmission of the balance to a Nominated Supplier in the case of transactions completed via the THCL Portal.
5.2 If the Buyer wrongfully or for any reason fails to take delivery of the Goods and/or Products, THCL shall be entitled to invoice the Buyer for the price at any time after THCL has notified the Buyer that the Goods and/or Products are ready for collection or delivery or (at its discretion, retain sums paid without deduction or reimbursement.
5.3 The Buyer otherwise shall pay the price of the Goods, Services and/or Products within 30 days of the date of THCL’s invoice. The time of payment of the price shall be of the essence of the Contract.
5.4 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to THCL, THCL may:
5.4.1 cancel the Contract or suspend any further deliveries of the Goods, Services and/or Products or performance of the Services to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods, Services and/or Products supplied under any contract between the Buyer and THCL (or a Nominated Supplier) as THCL may think fit notwithstanding any purported appropriation by the Buyer;
5.4.3 claim interest and/or compensation for reasonable debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented from time to time;
5.4.4 claim the benefit of any liquidated damages provision agreed between THCL and the Buyer;
5.4.5 refuse to make any further delivery of Goods, Products and/or Services without payment in advance; and/or
5.4.6 Suspend (as appropriate) the Buyer’s access to the THCL Portal.
6.1 Any dates quoted for delivery of the Goods and/or Products, or performance of the Services, are approximate only and THCL shall not be liable for any delay however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by THCL in Writing. The Goods, Services and/or Products may be delivered by THCL (or a Nominated Supplier, as the case may be) in advance of the quoted delivery date.
6.2 Where the Goods and/or Products are to be delivered in instalments, each delivery shall constitute a separate contract and failure by THCL (or a Nominated Supplier, as the case may be) to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract, as a whole, as repudiated, or obviate any of the Buyer’s duties and obligations to THCL under these Terms.
6.3 If THCL fails to deliver the Goods, Services and/or Products (or any instalment) for any reason other than any cause beyond THCL’s reasonable control or the Buyer’s fault, or THCL is liable to the Buyer for any other reason whatseover, THCL’s liability shall be limited to sums paid by the Buyer under the Contract. THCL shall, for the avoidance of doubt, incur no liability whatsoever to the Buyer for any failure of a Nominated Supplier or Royal Mail to deliver the Goods, Services and/or Products, or any breach related to such provision.
6.4 If the Buyer fails to take delivery of the Goods and/or Products, or fails to give THCL adequate delivery instructions at the time stated for delivery (other than by reason of any cause beyond the Buyer’s reasonable control or by reason of THCL’s fault) then, without limiting any other right or remedy available to THCL, THCL may:
6.4.1 store the Goods and/or Products until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
6.4.2 sell the Goods and/or Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract; and/or
6.4.3 Suspend (as appropriate) the Buyer’s access to the THCL Portal.
7. Risk and property
7.1 Risk of damage to or loss of the Goods and/or Products and/or third parties, pets or property shall pass to the Buyer:
7.1.1 in the case of Goods and/or Products to be delivered at the premises of THCL or a Nominated Supplier, at the time when THCL or a Nominated Supplier notifies the Buyer that the Goods and/or Products are available for collection; or
7.1.2 in the case of Goods and/or Products to be delivered otherwise than at the premises of THCL or a Nominated Supplier, at the time of delivery or, if the Buyer wrongfully or unreasonably fails to take delivery of the Goods and/or Products, the time when THCL or a Nominated Supplier / Royal Mail has tendered or attempted delivery of the Goods and/or Products.
7.2 Notwithstanding delivery and the passing of risk in the Goods and/or Products, or any other provision of these Terms, the property in the Goods and/or Products shall not pass to the Buyer until THCL has received in cash or cleared funds payment in full of the price of the Goods and/or Products and all other goods/products agreed to be sold by THCL or a Nominated Supplier to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods and/or Products passes to the Buyer, the Buyer shall hold the Goods and/or Products as THCL’s fiduciary agent and bailee, and shall keep the Goods and/or Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as THCL’s property..
7.4 Until such time as the property in the Goods and/or Products passes to the Buyer (and provided the Goods and/or Products are still in existence and have not been resold), THCL may at any time require the Buyer to deliver up the Goods and/or Products to THCL or its Nominated Supplier (at its discretion) and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods and/or Products are stored and repossess the Goods and/or Products.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods and/or Products which remain the property of THCL or its Nominated Supplier, but if the Buyer does so all moneys owing by the Buyer to THCL shall (without limiting any other right or remedy of THCL) forthwith become due and payable.
7.6Any and all Intellectual Property rights expressly or impliedly disclosed or licenced to the Buyer under this Agreement (whether expressly or impliedly), or produced from, developed or arising as a result of the performance of this Agreement shall remain, or so far as not already vested, become the absolute property of the THCL. The Buyer shall not utilise such Intellectual Property in any unauthorised manner without the prior written consent of THCL, and shall do all that is reasonably necessary to ensure that such rights remain or are vested in THCL by the execution of appropriate instruments or the making of agreements with third parties, should THCL so require. The Buyer shall indemnify THCL, as well as its officers, employees, affliliates, group companies and representatives fully against any and all losses caused to THCL by a breach of this clause 7.6 by the Buyer or any third party as a result of the Buyer’s unauthorised use or disclosure of Intellectual Property.
8. Warranties and liability
8.1 Subject to the following provisions THCL warrants that the Goods and/or Products provided directly by THCL will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 1 month from delivery.
8.2 THCL warrants that it will use reasonable skill and care in performing any Services.
8.3 The above warranties are, however, given by THCL subject to the following specific conditions and exclusions:
8.3.1 THCL shall be under no liability in respect of any defect in the Goods and/or Products or Services of which it could not reasonably have been expected to be aware;
8.3.2 THCL shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal living or working conditions, failure to follow THCL’s or manufacturer’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods and/or Products without THCL’s approval, or arising from the Buyer’s negligence or breach of their own legal or statutory duties of care for themselves or others;
8.3.3 THCL shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price for the Goods and/or Products or Services has not been paid by the due date for payment;
8.3.4 The above warranty does not extend to any Goods and/or Products (or parts thereof) not manufactured by THCL.
8.5 THCL does not warrant that any Goods, Services and/or Products will be fit for any particular purpose (whether made known to THCL or not). The Buyer acknowledges and agrees that it is responsible for inspecting and testing all Goods and/or Products and for ensuring that the Goods and/or Products are suitable for their particular purposes, but that this will have no impact on its payment obligations to THCL whatsoever.
8.6 Where the Goods and/or Products or Services are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms, unless relevant exceptions are permitted at law.
8.7 Problems based on any defective performance of the Services or defect in the quality or condition of the Goods and/or Products directly purchased from THCL or their failure to correspond with specification, shall (whether or not delivery is refused by the Buyer) be notified in the first instance to THCL within seven days from the date of delivery of the Goods and/or Products or performance of the Services in question or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
8.8 Where a valid or alleged claim in respect of any of the Goods and/or Products or Services directly purchased from THCL is notified to THCL in accordance with these Terms, THCL may replace the Goods and/or Products (or the part in question) or re-perform the Services free of charge or, at THCL’s sole discretion, refund to the Buyer the price of the Goods and/or Products or Services in question (or a proportionate part of the price), in which case THCL shall have no further liability to the Buyer. THCL shall at its discretion be able to resolve any complaints in any other way it considers reasonable or appropriate in the circumstances, but the Buyer shall indemnify THCL against any and all losses it may suffer whatsoever through the Buyer’s non-compliance with clause 8.7 above prior to further escalation.
8.9 THCL shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of any Contract, whether express or implied, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of THCL, its employees, agents, Nominated Suppliers or otherwise) which arise out of or in connection with the supply of the Goods and/or Products or Services (including any delay in supplying or any failure to supply the Goods and/or Products or Services in accordance with the Terms or at all) or their use or resale by the Buyer, and the entire liability of THCL under or in connection with any Goods and/or Products or Services purchased by the Buyer from THCL directly, or from a Nominated Supplier, shall not exceed the price of the Goods and/or Products or Services, except as expressly provided in these Terms.
8.10 THCL 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 obligations of THCL or a Nominated Supplier in relation to the Goods and/or Products or Services.
8.11 The Buyer shall be required, at the written request at any time of THCL, to provide or submit to reasonable credit checks. Should, as a result of any such checks (or the Buyer’s failure to provide or submit to such checks), THCL (in its absolute discretion) elect that these Terms should be terminable, then THCL shall be entitled to terminate these Terms on immediate written notice to the Buyer, without prejudice to the right to payment of any sums owing or outstanding as at the date of such termination and/or in respect of costs for work committed to, and without prejudice to any other of its rights under these Terms.
9. Insolvency of Buyer
9.1 This clause 9 applies if:
9.1.1 the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction), or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
9.1.3 or the Buyer ceases, or threatens to cease at some point in the future, to carry on business as previously conducted for whatever reason; or
9.1.4 THCL reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies then, without limiting any other right or remedy available to THCL, THCL may cancel the Contract or suspend any further deliveries or performance under the Contract without any liability to the Buyer, and if the Goods and/or Products have been delivered, Services performed but not paid for, or forward supply commitments undertaken by THCL for the purpose of Product, Goods or Services fulfilment, then the price and any THCL liabilities arising as a result of this shall become immediately due and payable on an indemnity basis, notwithstanding any previous agreement or arrangement to the contrary.
10.1 The Buyer shall keep confidential and not (except as authorised or required for the purposes of the Contract) use or disclose to any person or attempt to use or disclose to any person any information (whether or not expressed to be confidential) which it acquires from THCL relating to THCL’s business, business methods, organisation, finances or suppliers, including, for the avoidance of doubt, Intellectual Property.
10.2 The restrictions in clause 10.1 shall not apply to information which the Buyer establishes:
10.2.1 is known to the Buyer at the date of the disclosure by THCL, as evidenced from written records;
10.2.2 is after the date of disclosure by THCL acquired by the Buyer in good faith from an independent third party; and/or
10.2.3 has in its entirety become public knowledge otherwise than in breach of those restrictions.
11.1 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business, home address, 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 Any and all rights granted to the Buyer under this Agreement against THCL shall be exercisable solely against the THCL Contracting Party and, where appropriate, references to THCL in these Terms, shall be construed accordingly.
11.3 No waiver by THCL of any breach of the Terms by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any term or provision(s) of these Terms is/are held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms had been agreed with the invalid, illegal or unenforceable provision eliminated.
11.5 The Contract between THCL and the Buyer for the sale of Goods and/or Products and / or Services shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of THCL, acting by an authorised, registered representative.
11.6 The Buyer warrants and confirms that the individual(s) agreeing to these Terms and Conditions on their own part or on their behalf is /are fully authorised to do so, and that individual(s) from time to time who place orders to THCL directly or via the THCL Portal (as the case may be), on behalf of the Buyer, are also fully authorised, and the Buyer shall indemnify THCL should this not be the case in respect of all expense and loss resulting at any time.
11.7 Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between THCL and the Buyer, and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.
11.8 These Terms are private to THCL and the Buyer, and nothing in these Terms is intended to, nor shall it, confer any rights on a third party whatsoever, including, for the avoidance of doubt, any Nominated Supplier or group companies, affiliates, officers and/or employees of the Buyer, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. In the event that there is a conflict between the content of these Terms and contractual terms reached between a Buyer and any Nominated Supplier, the Buyer acknowledges that such conflict shall in no way affect or dilute its duties and obligations to THCL under these Terms.
11.9 The Buyer undertakes not to enter into any contractual obligation which would materially affect its ability to perform its duties and obligations to THCL under these Terms and agrees to indemnify THCL against any and all losses resulting from breach of this clause 11.9.
11.10 THCL undertakes that it has in place Anti-Bribery and Fraud Prevention policies that demonstrate full compliance with relevant laws in place, and that they will keep these up to date, and the Buyer hereby fully indemnifies THCL against any and all breaches on the part of the Buyer from time to time.
11.11 These Terms contains the entire agreement between THCL and the Buyer relating to the subject matter and supersede any and all previous agreements, arrangements, undertakings or proposals, oral or written.
11.12 The Parties agree to hold all relevant data in accordance with Data Protection Act legislation in place from time to time.
11.13 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.