IMS (EUROPE) BV– TERMS AND CONDITIONS OF SALE
INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are normally open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.5.
Contract: the contract between IMS (Europe) and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from IMS (Europe).
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
IMS (Europe) BV: IMS (Europe) BV, registered in the Netherlands with company number 91339804 and whose registered office address is at Venhorst aan de Kraaiendonk 46, 5428 NZ, The Netherlands.
Order: the Customer's order for the Goods, as set out in IMS (Europe)’s order form, the Customer’s purchase order form, the Customer’s written acceptance of IMS (Europe)’s quotation or in any other form, as the case may be.
Website: IMS (Europe)’s website at www.imseuro.eu
BASIS OF CONTRACT
2.1 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 law, trade custom, practice or course of dealing.
2.2 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 are complete and accurate.
2.3 The Order shall only be deemed to be accepted when IMS (Europe) issues a written acceptance of the Order by email, at which point the Contract shall come into existence. IMS (Europe) are under no obligation to accept an Order that is submitted by the Customer and is not required to provide a reason where it rejects an Order submitted to it.
2.4 Where IMS (Europe) receives an Order for Goods that are not available, IMS (Europe) shall contact the Customer prior to accepting the Order and shall, where possible, agree alternative products to include in the Order. Where alternative products are not available, subject to the Customer requesting otherwise, IMS (Europe) may accept the Order on the basis that the Goods will be delivered to the Customer when available for delivery.
2.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.6 Any samples, drawings, descriptive matter or advertising produced by IMS (Europe) and any descriptions or illustrations contained in IMS (Europe)'s catalogues or brochures or on IMS (Europe)’s website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.7 A quotation for the Goods given by IMS (Europe) shall not constitute an offer. A quotation shall only be valid for a period of 5 Business Days from its date of issue unless stated otherwise by IMS (Europe).
GOODS
3.1 The Goods are described in IMS (Europe)'s catalogue or on IMS (Europe)’s Website. IMS (Europe) reserves the right to amend any specification or description of the Goods if required by any applicable statutory or regulatory requirement, and IMS (Europe) shall notify the Customer in any such event.
DELIVERY
4.1 IMS (Europe) shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the purchase order number (where applicable), the type and quantity of the Goods (including the item code 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.
4.2 IMS (Europe) shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after IMS (Europe) notifies the Customer that the Goods are ready. Where the delivery contains dangerous Goods (as determined by IMS (Europe)), such Goods may be dispatched separately to other Goods being delivered and may incur a delay in delivery.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates or timescales quoted for delivery or set out in this clause 4 or elsewhere are approximate only, and the time of delivery is not of the essence. IMS (Europe) 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 IMS (Europe) with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If IMS (Europe) 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. IMS (Europe) shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide IMS (Europe) with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods on the first attempt to deliver after notifying the Customer that the Goods are ready, IMS (Europe) will make one further attempt to deliver the Goods to the Customer at a time notified to the Customer in advance. Should the Customer fail to accept delivery on this further attempt to deliver, then, except where such failure or delay is caused by a Force Majeure Event or IMS (Europe)'s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at the time that IMS (Europe) made the further attempt to deliver the Goods; and
4.6.2 IMS (Europe) shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance and failed delivery costs).
4.7 If ten Business Days after the day on which IMS (Europe) made its further attempt to deliver the Goods the Customer has not accepted actual delivery of them, IMS (Europe) may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 If IMS (Europe) delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, IMS (Europe) shall make a pro rata adjustment to the invoice for the Goods or refund such pro rata adjustment within 14 days.
4.9 IMS (Europe) may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 The Customer may return non-faulty Goods within 5 days of the date of delivery, subject to the following:
4.10.1 the Customer notifies IMS (Europe) as soon as possible (and in any event within 2 days of the date of delivery) of its intention to return some or all of the Goods and provides IMS (Europe) with any information required in relation to the Goods that are to be returned;
4.10.2 the Customer will be responsible for paying any costs of a return, and will remain responsible for the Goods until IMS (Europe) has notified receipt of the Goods to the Customer;
4.10.3 any return of Goods may (at IMS (Europe)’s option) be subject to a restocking and administration fee of up to 10% of the cost of the Goods being returned, such fee to be deducted by IMS (Europe) from any refund to be made to the Customer;
4.10.4 any returned Goods must be returned in their original packaging, in a saleable condition and accompanied by a returns form which can be obtained from IMS (Europe); and
4.10.5 Goods not accompanied by a returns form will not be accepted.
QUALITY
5.1 IMS (Europe) warrants that on delivery the Goods shall:
5.1.1 conform in all material respects with their description; and
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
and
5.1.4 be fit for any purpose held out by IMS (Europe).
5.2 Upon receipt of delivery of the Goods, the Customer shall without delay inspect the Goods and immediately report in writing if any of the Goods do not comply with the warranty set out at clause 5.1. Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to IMS (Europe) within 3 Business Days that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 IMS (Europe) is given a reasonable opportunity of examining such Goods; and’cal
5.2.3 if asked to do so by IMS (Europe), the Customer either (at IMS (Europe)’s option) returns such Goods to IMS (Europe)'s place of business at IMS (Europe)’s cost (calculated in accordance with standard postage costs) or makes the Goods available for collection by IMS (Europe); such return or collection to be received or taken by IMS (Europe) within 2 weeks of the date of delivery of the Goods to the Customer.
5.2.4 IMS (Europe) shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. Any Goods returned under this clause should be returned in their original packaging accompanied by a returns form which can be obtained from IMS (Europe). Goods not accompanied by a returns form will not be accepted.
5.3 IMS (Europe) shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow IMS (Europe)'s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the Customer alters or repairs such Goods without the written consent of IMS (Europe);
5.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
5.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
5.3.6 the Goods return is not accompanied by a returns form.
5.4 Except as provided in this clause 5, IMS (Europe) shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by IMS (Europe).
TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 IMS (Europe) receives payment in full (in cash or cleared funds) for the Goods and any other goods that IMS (Europe) has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case the Goods shall pass to the Customer at the time specified in clause 6.5.
6.3 Notwithstanding clause 6.2, IMS (Europe) may by notice to the Customer pass title to the Goods to the Customer at any time prior to the title passing to the Customer in accordance with clause 6.2.
6.4 Until title to the Goods has passed to the Customer, the Customer shall:
6.4.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as IMS (Europe)'s property;
6.4.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.4.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.4.4 notify IMS (Europe) immediately if it becomes subject to any of the events listed in clause 9.1.2 and clause 9.1.3; and
6.4.5 give IMS (Europe) such information as IMS (Europe) may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.5 Subject to clause 6.6, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before IMS (Europe) receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.5.1 it does so as principal and not as IMS (Europe)’s agent; and
6.5.2 title to the Goods shall pass from IMS (Europe) to the Customer immediately before the time at which resale by the Customer occurs.
6.6 At any time before title to the Goods passes to the Customer, IMS (Europe) may:
6.6.1 by notice in writing, terminate the Customer's right under clause 6.5 to resell the Goods or use them in the ordinary course of its business; and
6.6.2 require the Customer to deliver up all Goods in its possession that have not been already used in the Customer’s ordinary course of business 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
7.1 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 IMS (Europe)'s published price list in force as at the date of delivery (as published on IMS (Europe)’s Website). Any prices for Goods published or set out elsewhere (such as within IMS (Europe)’s brochure or marketing materials) are correct at the time of printing only.
7.2 IMS (Europe) may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond IMS (Europe)'s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give IMS (Europe) adequate or accurate information or instructions.
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to IMS (Europe) at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer. IMS (Europe)’s current delivery and return charges are as set out on IMS (Europe)’s Website. IMS (Europe) may at its option amend its delivery and return charges at any time.
7.4 IMS (Europe) may increase the price of its Goods at any time without notice and the Customer should refer to IMS (Europe)’s Website for up-to-date prices of Goods. Notwithstanding the foregoing, IMS (Europe) will use its reasonable endeavours to notify a Customer of price increases to the Goods that may in its opinion apply to a Customer.
7.5 Where IMS (Europe) agrees (acting in its absolute discretion) in advance of dispatching the Goods that the Customer will make payment for Goods on completion of delivery, IMS (Europe) will invoice the Customer for the Goods on or at any time after completion of delivery. The Customer shall pay each invoice submitted by IMS (Europe) within 30 days of the date of the invoice (or in accordance with any credit terms agreed by IMS (Europe) and confirmed in writing to the Customer) and in full and in cleared funds to a bank account nominated in writing by IMS (Europe). Where IMS (Europe) agrees payment terms with the Customer under this clause 7.5, IMS (Europe) will not be obliged to agree to the same payment terms for future orders made by the Customer and may amend its payment terms at any time acting in its sole discretion.
7.6 Where clause 7.5 does not apply, the Customer shall make payment for Goods in advance of their dispatch. IMS (Europe) has the right to delay the dispatch of Goods until payment has been made by the Customer and in full and cleared funds.
7.7 Time for payment shall be of the essence of the Contract.
7.8 If the Customer fails to make a payment due to IMS (Europe) under the Contract by the due date, then, without limiting IMS (Europe)'s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.8 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.10 Notwithstanding any agreement or statement to the contrary, any discounts or rebates made available by IMS (Europe) in relation to its Goods shall not apply to any capital equipment, surgical instruments or other non-consumable items (as determined by IMS (Europe) acting in its sole discretion).
LIMITATION OF LIABILITY
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.3 Subject to clause 8.2, IMS (Europe)'s total liability to the Customer in respect of all claims and other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total price paid for the Goods under the Contract.
8.4 Subject to clause 8.2, the following types of loss are wholly excluded:
8.4.1 any loss (whether direct or indirect) of profits, sales or business, revenue, anticipated savings, reputation or goodwill;
8.4.2 any special, indirect or consequential loss, costs, damages, charges or expenses, however arising under the Contract; and
8.4.3 any business interruption, loss of business, contracts and/or opportunity.
8.5 This clause 8 shall survive termination of the Contract.
TERMINATION
9.1 Without limiting its other rights or remedies, IMS (Europe) may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 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 that party being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; and/or
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business or the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, IMS (Europe) may suspend provision of the Goods under the Contract or any other contract between the Customer and IMS (Europe) if the Customer becomes subject to any of the events listed in clause 9.1.2 and clause 9.1.3, or IMS (Europe) reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, IMS (Europe) may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to IMS (Europe) all of IMS (Europe)'s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, IMS (Europe) shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
GENERAL
11.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 12 weeks the party not affected may terminate the Contract by giving 7 days' written notice to the affected party. This clause shall not apply to the Customer’s obligations to make payment of the Goods under clause 7.
11.2 Confidentiality. The parties agree that the terms of the Contract and any written or oral information exchanged between the parties relating to or concerning the business, affairs, customers, clients or suppliers of the other party is confidential information. Neither party shall at any time disclose to any person such confidential information without the prior consent of the other party unless disclosure is required by law, a court of competent jurisdiction or any governmental or regulatory authority or disclosure is required on a confidential basis to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract.
11.3 Assignment and other dealings. IMS (Europe) may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 IMS (Europe).
11.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 10.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and addressed to its registered office address (or such other address that may be nominated by a party from time to time) and shall be deemed to have been delivered on delivery if by hand or within 48 hours of posting if sent by prepaid first class registered post. A notice given under the Contract is not valid if sent by email.
11.9 Third Party Rights. All third party rights are excluded and no third parties shall have any rights to enforce the Contract.
11.10 Governing Law and Jurisdiction. The Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the non-exclusive jurisdiction of the English courts in relation to any matter or dispute arising out of or in connection with it (whether of a contractual or tortious nature or otherwise).