Definitions
1. Contract: this contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these terms.
2. Company: GV Health Limited (registered in England and Wales with company number 2794881).
3. Goods: the goods (or any part of them) set out in the Order Acknowledgement.
4. Order: the Buyer’s order for Goods made by the Buyer in writing to the Company.
5. Order Acknowledgement: written confirmation from the Company to the Buyer stating the Goods, quantity and price.
6. Supply Contract: another contract between the Company and the Buyer that details any other terms and conditions which override those stated in this Contract, and which can include a price list specific to that Buyer
Interpretation
a. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
c. A reference to writing or written includes email.
Basis of Contract
1. Subject to clause 60, these terms apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2. All Goods sold by the Company are sold subject to these terms.
3. Unless otherwise expressly agreed in writing by a Director of the Company, any addition to, deletion from or variation or qualification of this Contract shall be inapplicable.
4. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with this Contract.
5. The Order shall only be deemed accepted when the Company issues an Order Acknowledgement, at which point the Contract shall come into existence.
6. Each Order shall be deemed to be a separate offer by the Buyer to purchase goods on the terms of this Contract, which the Company shall be free to accept or decline at its absolute discretion.
7. At the time of Order, the Buyer shall notify the Company in writing if there are any requirements in relation to production, labelling, the shipping process and/or what, if any, certificates and/or documents are required for the Goods at any stage from entry, distribution, storing time and post-sale.
8. If the Buyer fails to inform the Company of any special requirements in accordance with clause 7 and/or the Buyer wishes to change the requirements it provided (Additional or Amended Requirements), the Buyer shall bear all costs incurred by the Company in fulfilling the Additional or Amended Requirements.
9. The Company agrees to sell goods to the Buyer in the territory agreed on a Supply Contract or Distributor Agreement. Where no territory is named on a Supply Contract or Distributor Agreement, or where there is no Supply Contract or Distributor Agreement between the Buyer and the Company, then the territory of sale is assumed to be the United Kingdom (England, Wales, Scotland and Northern Ireland). The Company agrees to advise and support the Buyer in an onward sale or use of goods within the Buyer’s territory (where reasonable, and where there is no additional cost to the Company). The Buyer shall bear the costs and responsibility of any onward sale or use of the goods outside of the Buyer’s territory.
Price and Payment
10. The price of the Goods shall be the price set out in the Company’s published price list in force as at the date of the Order Acknowledgement. In the event of a Supply Contract or Distributor Agreement being In place between the Company and the Buyer, and pricing stated therein is different to the Company’s published price list, the pricing stated in the Supply Contract or Distributor Agreement will supersede the Company’s published price list.
11. The Company reserves the right to increase any prices agreed between the Company and the Buyer in the event of any increase payable by the Company in performing the Contract occurring between the date of the Buyer’s Order and the actual date of delivery of the Goods. If a variation in price occurs during the currency of the Contract the price of the portion of the Contract undelivered at the date of such variation shall be altered accordingly.
12. The Company may, by giving notice to the Buyer at any time up to 3 working days before the Goods are dispatched, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a. any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, increases in labour, materials and other manufacturing costs and changes in any regulatory standards or specifications);
b. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or any specification provided; or
c. any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
13. Unless otherwise stated the prices quoted will be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date the Goods are dispatched.
14. The Company may invoice the Buyer for the Goods on or at any time after the Order Acknowledgement.
15. The Buyer shall pay each invoice submitted by the Company in accordance with the terms set out in each invoice and time for payment shall be of the essence of the Contract.
16. If the Buyer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clauses 50 to clause 55 (inclusive), the Buyer 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 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%.
17. 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).
Title and Risk
18. Title in the Goods shall not pass from the Company to the Buyer until the Company receives payment in full (in cash or cleared funds) for the Goods.
19. In the event of the delivery of the Goods by instalments, title to the Goods comprised in each instalment shall pass to the Buyer only upon payment being made to the Company for the full invoice value of that instalment.
20. Until title in the Goods has passed to the Buyer, the Buyer shall accept all responsibility for the safe custody, protection and preservation of the Goods including insurance, and immediately upon the Goods coming into the possession of the Buyer or its agents and pending payment of the full invoice value, shall be liable to indemnify the Company in respect of all loss or damage of whatsoever nature affecting the Goods.
21. Unless Incoterms are agreed in writing between the parties (in which case risk shall pass to Buyer in accordance with such agreed Incoterms), risk in the Goods shall pass to Buyer on completion of delivery of the Goods or collection by the Buyer (as may be agreed between the Company and the Buyer) at the place specified in the Order Acknowledgement.
Quality
22. The Company warrants that on delivery the Goods shall:
a. conform in all material respects with their description as set out on the Company’s website or any Company brochure; and
b. be free from material defects in design, material and workmanship.
23. Subject to clause 24, if the Buyer gives notice in writing to the Company as soon as practicable on discovery that some or all of the Goods do not materially comply with the warranty set out in clause 22, and:
a. the Company is given a reasonable opportunity of examining such Goods; and
b. the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost,
c. the Company shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
24. The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 22 if:
a. the Goods were sold by the Company to the Buyer at a reduced cost for any reason;
b. the Buyer makes any further use of such Goods after giving notice in accordance with clause 23;
c. the defect arises because the Buyer failed to follow the Company’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;
d. the Buyer alters or alters such Goods without the written consent of the Company;
e. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
f. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
25. Except as provided in clause 23, the Company shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 22.
Import Licences
26. The Buyer shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Goods into the country or countries, as the case may be, to which the Goods are to be collected by or delivered to the Buyer. The Buyer shall be responsible for any customs duties, clearance charges, brokers’ fees and other amounts payable in connection with the importation and collection or delivery of the Goods.
Delivery
27. Unless the parties agree in writing that the Goods are to be collected by the Buyer, the Company shall provide to the Buyer an estimated delivery date within 48 hours of issuing an Order Acknowledgement.
28. Any dates quoted for delivery are approximate only and whilst the Company shall use reasonable endeavours to ensure that the Goods are delivered by the estimated delivery date, the time of delivery is not of the essence.
29. If the Company fails to deliver the Goods, it shall, at its option, replace the Goods or refund the monies, if any, received from the Buyer in respect of payment of the relevant Order. These remedies shall not apply where any such failure of delivery is due to the fault of a third party carrier (unless appropriate Incoterms have been agreed, which place responsibility for delivery on the Company).
30. Where there is a delay in the delivery of any bespoke Goods for whatever reason, the Buyer shall agree to an alternative delivery date.
31. Where the parties have agreed in writing that the Buyer shall collect the Goods, if ten working days after the day on which the Company notified the Buyer that the Goods are ready for collection, the Buyer has not collected them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Buyer for any shortfall below the price of the Goods, and the Buyer indemnifies the Company in respect of the same.
32. The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately unless otherwise agreed in writing. Each instalment shall not entitle the Buyer to cancel any other instalment.
33. If the Company delivers up to and including 10% less than the quantity of Goods ordered, the Buyer may not reject them and should inform the Company of such under-delivery. On receipt of notice from the Buyer that the wrong quantity of Goods was delivered, the Company may, at its option, make up the balance of Goods ordered, or refund or setoff the difference of the shortfall by making a pro rata adjustment to the invoice for the Goods.
34. If the Company delivers up to and including 5% more than the quantity of Goods ordered, the Buyer shall inform the Company of such over-delivery, and the parties shall discuss and agree on a suitable course of action. Notwithstanding this, the Company reserves the right to charge for the additional Goods delivered, or to request for the surplus Goods to be returned by the Buyer to the Company (at the Company’s cost).
Returns and Cancellations
35. The Buyer may cancel an Order for Goods by giving notice in writing up to 48 hours prior to such Goods being dispatched. However, the Buyer may not cancel an Order for Goods where these are bespoke or made to the Buyer’s order. In the event the Buyer does cancel an Order for any bespoke Goods, the Buyer shall indemnify the Company against all losses including direct and indirect losses including, but not limited to, the manufacturing cost incurred by the Company.
36. Where the Buyer gives notice of cancellation in accordance with clause 35, the Company shall at its discretion refund the Buyer for any payment received from the Buyer in respect of the cancelled Goods or off-set costs incurred by the Company in manufacturing the Goods up to the date of cancellation.
37. The Company does not accept returns unless the Company has requested for the Goods to be returned in accordance with clause 23 and/or clause 34.
Compliance
38. The Buyer shall at its own expense comply with all laws and regulations relating to its activities under this Contract, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
39. The Company abides by the quality of the Goods quantitatively and qualitatively and the Goods are compatible to all the required UK standards and specifications.
40. The Buyer shall inform the Company of all laws and regulations affecting the manufacture, sale, packaging and labelling of Goods which are in force within the country or countries to which the Goods are collected by or delivered to the Buyer in force at the time of the Order (Local Regulations). Further, the Buyer shall give the Company as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
Limitation of Liability
41. The restrictions on liability in clause 43 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
42. Nothing in this Contract limits any liability which cannot legally be limited, including liability for:
a. death or personal injury caused by negligence;
b. fraud or fraudulent misrepresentation;
c. any matter in respect of which it would be unlawful to exclude or restrict liability.
43. Subject to clause 42, the Company’s total liability to the Buyer shall not exceed the value of the Order placed (for which an Order Acknowledgement was issued) to which a claim relates.
44. Subject to clause 42, no claim against the Company in respect of any matter whatsoever including quality shall be made and the Company shall incur no liability in respect of any such claim unless such claim is received by the Company in writing within twenty eight days after delivery of the Goods and the Company is given the opportunity to examine the entire consignment or such part that the Company considers necessary.
45. The Company shall not under any circumstances be liable to the Buyer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
a. any loss of profit, revenue, or anticipated savings; or
b. any loss that is an indirect or secondary consequence of any act or omission of the Company.
46. The Buyer shall indemnify the Company against any claim whatsoever and all liability in respect of any infringement of patent rights resulting from compliance with the Buyer’s instructions, expressed or implied.
Confidentiality
47. Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the sales prices, business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 48.
48. Each party may disclose the other party’s confidential information:
a. 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. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 48; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
49. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
Termination
50. Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:
a. the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
b. the Buyer 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;
c. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
d. the Buyer’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.
51. Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 50.a to clause 50.d, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
52. Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
53. On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Buyer’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
54. 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.
55. 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.
Force Majeure
56. A Force Majeure Event shall mean an occurrence beyond the control and without the fault or negligence of the party affected and which the said party is unable to prevent or provide against by the exercise of reasonable diligence including, but not limited to:
a. acts of God, flood, drought, earthquake or other natural disaster;
b. epidemic or pandemic;
c. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d. nuclear, chemical or biological contamination or sonic boom;
e. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
f. collapse of buildings, fire, explosion or accident;
g. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
h. non-performance by suppliers or subcontractors; and
i. interruption or failure of utility service.
57. Provided it has complied with clause 58, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
58. The Affected Party shall:
a. as soon as reasonably practicable after the start of the Force Majeure Event, but no later than 5 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
b. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
59. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 120 days, the party not affected by the Force Majeure Event may terminate this agreement by giving 30 days’ written notice to the Affected Party.
Entire Agreement
60. This Contract together with the terms set out in an invoice issued by the Company to the Buyer and the terms in any other written agreement entered into between the parties constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
61. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
Third Party Rights
62. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
63. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
Variation
64. No variation of the Contract shall be effective unless it is in writing and signed by the parties.
Waiver
65. 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.
Severance
66. 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 66 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.
Notice
67. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
68. Any notice shall be deemed to have been received:
a. if delivered by hand, at the time the notice is left at the proper address; or
b. 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.
69. Clauses 67 and 68 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Governing law and Jurisdiction
70. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
71. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.