(In these Conditions the expression “contract” means an offer or an order followed by an acceptance thereof whether by conduct or otherwise)
1. PRICES:
a) Prices shall be those quoted or accepted by the Seller subject to a revision in the event of any increase or decrease of the costs to the seller between the date of the quotation or acceptance by the Seller and the date of despatch to the Buyer.
b) All prices quoted or accepted are exclusive to Value Added Tax and the contract price shall be such price plus V.A.T.
2. TERMS:
a) Net cash by 30 days from the date of invoice. Interest will be charged at 2% per month or part month if payment condition is not met.
b) In the case of a contract involving more than one delivery, if default is made in payment on the due date for any one delivery, the Seller, at his option, shall be entitled to treat the contract as repudiated by the buyer and claim damages accordingly.
c) A contract cannot be cancelled except by mutual agreement and then only on terms which would fully indemnify the Seller.
d) Incoterms 2010 shall apply to export sales.
3. DELIVERY:
a) Subject to clause 3 b) below unless a date for delivery is specified the goods shall be despatched as soon as ready.
b) In the case of a contract involving more than one delivery unless the contract provides otherwise the whole of such deliveries shall be accepted within six months from the date of first delivery.
In the event of failure to accept any delivery that delivery shall be immediately invoiced and the costs involved charged to customer’s account the goods being held at customer’s risk and expense.
c) Subject to Clauses 2(b) and 3 (b) above, each delivery shall constitute a separate contract and any failure or defect in any one delivery shall not affect the contract as to the remaining deliveries.
d) The Seller shall have the option of revising the delivery date or dates prior to manufacture if circumstances beyond the Seller’s control prevent the Seller keeping to the originally agreed date or dates.
e) The liability of the Seller for failure to comply with agreed delivery dates as varied where necessary in accordance with the sub-clause and unless covered by Clause 10, shall be limited to the reimbursement to the Buyer of the actual loss incurred, but in no case exceeding the value of the goods which are the subject of the contract.
f) All orders on Ex Works or other terms where the Buyer is responsible for freight will be invoiced on completion and it will be the Buyers responsibility to arrange collection of the goods or to instruct the Seller accordingly at the time of order. Collection of goods must be arranged within 14 days of completion. If not collected within that time the Seller reserves the right to charge the Buyer for storing the goods.
4. QUANTITY VARIATIONS:
In the case of goods specifically manufactured (or printed) for the Buyer a shortage or surplus, charged pro rata, not exceeding 20% up to 1 tonne, and 10% over 1 tonne will be considered due to execution of the contract.
5. SKETCHES:
All SKETCHES, drawings, artwork and origination work remain the property of the Seller unless paid for by the Buyer
6. PROOFS:
In the case of printed items alterations from the original copy on and after the first proof, including alteration in style, will be charged extra. No responsibility will be accepted for any errors in proofs which have been passed by the Buyer.
7. PASSING OF OWNERSHIP AND CLAIMS:
a) Title to the goods shall in no case pass to the Buyer until the full contract price has been paid to the Seller for these goods and all other goods supplied by the Seller to the Buyer under any contract whatsoever. The Seller shall in any event have a particular and general lien over the goods for all claims under contract against the Buyer.
b) All claims for damage to or partial loss of goods in transit must be submitted in writing to both carrier and Seller within fourteen days of delivery.
c) The return of goods after delivery to the Buyer will not be accepted unless the Seller or his representative shall first have had the opportunity of examining them.
d) The return of bespoke goods will not be accepted if the goods have been manufactured in accordance with the agreed artwork and proofs as agreed by the Buyer.
8. LIMITATION OF REMEDIES FOR BREACH:
In the event of a breach of warranty by the Seller, Seller shall be given reasonable and prompt opportunity to examine any claim of defect by the Buyer. Buyer agrees that its sole and exclusive remedy against the Seller shall be limited to either repair or replacement of the Products or a refund of the purchase price for the defective Products only at Seller’s option. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to repair or replace the defective Products.
9. LIMITATION OF DAMAGES:
a) The maximum liability, if any, of Seller for all damages including without limitation contract damages and damages for injuries to persons or property, whether arising from sellers breach of contract, breach of warranty, negligence, strict liability, or other tort, is limited to an amount not to exceed the purchase price of the products at issue in the claim.
b) In no event shall Seller be liable to Buyer for any special, incidental, indirect, consequential, or punitive damages, including without limitation lost revenues and profits and/or monetary requests relating to recall expenses and repairs to property including third party claims, even if it has been advised of the responsibility of such damages.
10. BUYERS PROPERTY:
The Buyer’s property when supplied to the Seller will be held at the Buyer’s risk. Every care will be taken by the Seller to secure the best results when materials are supplied by the Buyer but no responsibility will be accepted for imperfect work caused by defects in or unsuitability of the materials supplied.
11. MATERIAL:
Whilst every endeavour will be made to supply material in accordance with the quality of samples submitted or quoted for, the contract is not a contract of sale by sample.
12. FORCE MAJEURE:
This contract may be varied or cancelled by the seller if it is affected by an act of God, War, Strike, Lock-out, Fire, Flood, Drought, Tempest or any other cause beyond the control of the seller whether similar to the foregoing or not, or if the Seller shall for any reason be unable to procure materials or articles required for the performance of the contract.
13. PASSING OF RISK:
From the time of delivery the goods shall be at the risk of the Buyer who shall be solely responsible for their custody and maintenance unless otherwise expressly agreed in writing. Pending payment of the full purchase price of the goods the Buyer shall at all times keep the goods comprehensively insured against loss or damage by accident, fire, theft and other risks.
14. LAW AND JURISDICTION
a) A contract under these terms and conditions shall be governed by and construed in accordance with English law.
b) Any disputes relating to a contract under these terms and conditions shall be subject to the exclusive jurisdiction of the courts of England.
c) These conditions of sale take precedence over any customer conditions of purchase and customer orders are only accepted on this basis.
CONDITIONS OF PURCHASE
Westfield Medical is part of the Sterimed Group. The following are the conditions of purchase applicable to all Sterimed companies:
GENERAL CONDITIONS OF PURCHASE – Version March 2021
Article 1: Scope of Application and Priority
These general conditions of purchase together with the relevant purchase order shall set forth the binding terms for supplies, equipment, facilities and services (hereinafter the “Goods”) placed by companies of STERIMED, whose contact details appear on the purchase order form (hereinafter the “BUYER” or “STERIMED”). STERIMED is not bound by the Supplier’s general conditions of sale and any additional or different terms or provisions that may appear on any proposal, quotation, price list, acknowledgement, invoice, packing slip or the like by the Supplier, or Course of performance, course of dealing, and usage of trade shall not be applied to modify these General Conditions of Purchase unless STERIMED expressly agrees in writing.
Article 2: Orders
2.1 The Supplier shall return to STERIMED the acceptance of the purchase order, duly signed within 2 working days from the date of receipt of the order. Moreover, if the Supplier does not reject a purchase order in writing within the aforementioned time limit, the order shall be deemed to have been accepted based on the present general conditions of purchase (the “Agreement”). The execution of an order shall be evidence of the acceptance thereof on the terms of the Agreement.
2.2 Until the day of expedition of the Goods, STERIMED reserves the right to modify the quantities ordered without extra cost.
Article 3: Compliance with Laws and Regulations
The Supplier shall at all times comply with all laws, regulations and ordinances applicable to this Agreement including but not limited to all labour, environmental laws… The Goods must be delivered with relevant guidelines and instructions for use, storage and maintenance under safe and optimal conditions, as well as the documents stipulated under the standards, laws and regulations of the country of delivery. Failing this upon delivery, STERIMED reserves the right to refuse the Goods.
Article 4: Delivery, Reception… Time
Time is of the essence and all dates referred to in this Agreement shall be firm. In the event that the Supplier anticipates any difficulty in complying with any delivery date or any of its other obligations under this Agreement, the Supplier shall promptly notify STERIMED thereon in writing.
Article 5: Delivery of Goods
5.1: Conditions and content of deliveries
The Supplier shall abide by the access and unloading conditions in force on the delivery site. In absence of express stipulation, the Goods shall be delivered DDP (Incoterms 2020) with a delivery slip attached, stating the purchase order no, the Goods’ reference and quantity. In its absence, solely weight and quantity noted by STERIMED are taken into account for payment of the invoices.
5.2: Packaging and transport
The Supplier shall pack, mark, and ship the Goods with sound commercial practices and STERIMED’s specifications in such manner as to prevent damage during the transport and to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for STERIMED. Supplier shall be liable for any loss or damage due to its failure thereto. STERIMED shall not be required to assert any claims for such loss or damage against the common carrier involved.
5.3: Delivery times
The dates of delivery of Goods to the final destination are binding and may only be modified with STERIMED’s express written consent. Supplier shall make no partial delivery or delivery prior or posterior to the agreed delivery date(s) unless STERIMED agreed otherwise in writing. If an advance delivery is accepted, only the contractual delivery date shall be taken into account to calculate the due payment date of invoice. However, STERIMED reserves the right to refuse any untimely delivery of Goods and return same at the Supplier’s risk and expense.
5.4: Consequences of late delivery
In the event of late delivery, STERIMED may (i) request express delivery at the Supplier’s expense; (ii) apply a penalty for late performance equal to 1% per week of delay of the price of the Goods concerned, inclusive of tax, and limited to 5%; (iii) offset these penalties against the amounts payable to the Supplier providing the Supplier does not raise an objection within 4 days of receipt by STERIMED of this notice; and (iv) terminate or cancel ipso jure, in whole or in part, any order that is not delivered timely by written notice without prejudice to any other rights and remedies.
5.5: Acknowledgment of receipt of Goods
Delivery shall be deemed completed when its receipt has been acknowledged in writing by STERIMED. The acknowledgment of receipt of consumables or ready-to-use Goods shall be evidenced by the signature of the delivery slip by STERIMED, without any reservations; the acknowledgment of receipt of services shall be evidenced by the actual, definitive performance of the services in full for STERIMED, without any reservations STERIMED. However, both shall not constitute acceptance of Goods in terms of free of defect and in conformity. The acknowledgment of receipt of equipment or facilities requiring installation, setting and/or putting into service shall be evidenced by STERIMED’s signature of a handover protocol without reservations.
Article 6: Prices and Payment
6.1: Price
All prices shall be fixed prices for properly packed and delivered Goods and/or for installation of equipment/facilities, including setting and putting into service, transported to and unloaded at the place indicated by STERIMED. Transportation of goods shall be carried out at the risk and expense of the Supplier. The fixed prices include insurance, customs formalities and duties, taxes and included. 6.2: Payment
Payment invoices must be sent for each purchase order in three originals to STERIMED’s accounts department indicating at least purchase order number, quantity of Goods as well as date and number of delivery slip. Subject to the acceptance of the Goods by STERIMED and the invoice in proper form, full payment shall be made by wire, within 60 days. If Supplier fails to fulfil any of its obligations under this Agreement, STERIMED may suspend payment to Supplier. STERIMED may at all times have the right to set off and deduct from any amounts owed by STERIMED to Supplier any amount owed by Supplier to STERIMED, irrespective of the nature of any such claim. The Supplier acknowledges and agrees that any debt due by STERIMED to Supplier may be paid on STERIMED’s behalf by any other legal entity belonging to the STERIMED Group and/or a third party designated by STERIMED. By such payment STERIMED will be totally discharged from such debt.
6.3: Title
Title in the Goods shall pass to STERIMED on delivery except for Goods untimely delivered (Article 5.3) even if a fraction of the price is not yet payable or outstanding. If advance payments are made on these Goods prior to delivery, title in the Goods shall pass on payment.
Article 7: Acceptance and Transfer of Risks
Acceptance and transfer of risks of Goods and/or Services shall take place on STERIMED’s site after due checking irrespective of the payment and delivery terms.
Article 8: Quality
8.1: Free of defects and conformity
The Supplier certifies the Goods free of defects and conform to the requirements of this Agreement. Inspection of or payment for the Goods by STERIMED shall neither constitute acceptance nor release Supplier from any of its obligations, representations or warranties under this Agreement. STERIMED reserves the right to inspect the Goods on Supplier’s sites during the execution of the order. If any inspection or test by STERIMED is made on the premises of the Supplier, Supplier shall provide reasonable facilities and assistance for the safety and convenience of STERIMED’s inspection personnel. Supplier undertakes to inform STERIMED immediately of any suspected non-conformity of the Goods delivered to STERIMED.
8.2: ISO Certifications
In the event the Supplier has ISO certifications, these conditions shall constitute confirmation by the Supplier of the implementation of all obligations resulting thereof, thus reducing the quality control checks required upon delivery to the premises of STERIMED. Moreover, the Supplier must inform STERIMED immediately of any material events related to this ISO certifications (renewal, cancellation).
8.3: Changes to Goods
The Supplier shall not, without the prior written consent of STERIMED given at latest 1 year before the change, make any changes on Goods, manufacturing process, place of manufacture, raw material…. In case of an agreed change, any cost incurred for qualification, trials….will be borne by the Supplier.
8.4: Performance of Services, Good Faith
Any design, manufacturing, installation or delivery or other obligation to be performed by or on behalf of the Supplier under this Agreement shall be executed with due skill and care and in good faith.
Supplier shall be fully liable for such performance.
Article 9: Warranty
Contractual warranties shall begin to run for a period of 24 months, on the date on which STERIMED acknowledges receipt of the Goods (see Article 5.5 above), unless agreed otherwise.
9.1: Goods
The Supplier represents and warrants to STERIMED that the Goods are: (i) suitable for the intended purpose and shall be new, merchantable, of good quality and free from all defects in design, materials, construction and workmanship; (ii) comply with the specifications and any other requirements under this Agreement; (iii) shall be free from any and all liens and encumbrances; (iv) are provided with and accompanied by all information/instructions necessary for proper and safe use; (v) accompanied by all required licenses for their intended use including the right to transfer and the right to grant sublicenses; (vi) do not violate or infringe any third party domestic or foreign patent, copyright, trade secret, trademark or other intellectual property rights; and (vii) manufactured, stored and transported in accordance with all laws and regulations applicable in the country of manufacture, storage and transit, in particular those regarding health, safety, the environment and labour law.
9.2: Remedies
If any Goods are defective or not in conformity with the requirements of this Agreement, STERIMED shall notify promptly Supplier thereon and may without prejudice to any other right or remedy under this Agreement or applicable law, at its sole discretion and at costs and risk of Supplier: (i) claim a full refund of the price paid under this Agreement and return the Goods concerned; or (ii) require Supplier promptly to remedy the defect or non-conformity or replace the nonconforming Goods with Goods meeting the specifications. Rejected Goods shall be deemed undelivered.
The Supplier shall collect the Goods within 15 days of the notice of nonconformity or defect. Acceptance of, or payment for, all or any part of the Goods under this Agreement shall not be deemed to be a waiver of STERIMED’s right to cancel or return or reject all or any part thereof by reason of non conformity or defects, latent or patent, or other breach of warranties, or to make any claim for damages, including manufacturing costs and loss of profits or other special damages occasioned to STERIMED.
Article 10: Liability
The Supplier shall be liable for all damages directly or indirectly caused to STERIMED as a result of the breach of its obligation including but not limited to, delay in delivery, result of non-conformity. The Supplier shall indemnify and hold harmless STERIMED, its agents and employees from and against any third parties’ suits, legal actions or administrative proceedings, claims for damages, judgements, liabilities, interest, attorneys fees, costs and expenses whatsoever (including but not limited to special, indirect, incidental, consequential damages) whether arising before or after the completion of delivery of Goods under this Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, duties under this Agreement, or negligence of Supplier (or of anyone acting under its direction or control or on its behalf).
STERIMED shall not be liable to Supplier for any lost revenue, lost profits or other incidental or consequential damages even if STERIMED has been advised of the possibility of such damages. In no event shall STERIMED be liable to Supplier, its successors or assigns for damages in excess of the amount due to Supplier for complete performance under this Agreement, less any amounts already paid to Supplier by STERIMED. Any limitation of liability or indemnity will be void and not written.
Article 11: Suspension and Termination
Without any prejudice to any other right or remedy available to STERIMED under this Agreement or at law, STERIMED shall be entitled at its discretion to suspend or terminate ipso jure and with immediate effect its obligations under this Agreement in whole or in part by means of written notice in the event that: (i) Supplier breaches any of its obligations under this Agreement; Supplier becomes subject of bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceedings within filing or petition proceedings, and/or (ii) STERIMED shall not be liable to Supplier by virtue of such termination. In the event of termination, any obligation entered into prior to termination, shall be performed under the terms and conditions of this Agreement, and/or a force majeure event occurs.
Article 12: Intellectual Property and Confidentiality
The Supplier shall treat all information provided by STERIMED or on behalf of STERIMED or exchanged under this Agreement as confidential including but not limited to specifications, plans, drawings, formulae, documents, tools, moulds, provided or created with a view to producing the Goods ordered by STERIMED (the “Information”). All such Information shall be used by Supplier only for the purposes of this Agreement and under at least reasonable care while protecting such Information. All such Information shall remain the full and exclusive property of STERIMED and the Supplier shall, upon STERIMED’s demand, promptly return it to STERIMED without retaining any copy thereof. The Supplier undertakes to assign all intellectual property rights that may be generated by the execution of the order, and recognises that the price paid for the Good includes consideration for the transfer of intellectual property right.
Article 13: Personal data protection
Supplier must comply with the applicable legislation and regulation in personal data protection – especially the French Data Protection Act n°78-17 of January 6th, 1978 and the European regulation 2016/679 “General Data Protection Regulation” (“GDPR”).
Article 14: Business Ethics
Supplier undertakes to comply with all applicable norms in the business ethics field, anticorruption, anti-money laundering etc. Supplier declares having read carefully STERIMED’s code of ethics and to comply with it.
Article 15: Miscellaneous
(I) This Agreement shall be governed by and construed in accordance with the applicable law pursuant to the principles of international private law applicable in STERIMED’s country of establishment under exclusion of the United Nations Convention on International Sale of Goods. (II) Failing amicable settlement between the Parties, all dispute arising out or in connection with this Agreement, shall be subject to the exclusive jurisdiction of the competent courts at STERIMED’s registered office. (III) Supplier shall perform hereunder as an independent contractor and nothing contained in this Agreement is intended to create a partnership, joint venture or employment relationship between the parties. Supplier shall not subcontract, transfer, pledge or assign any of its rights or obligations under this Agreement without the prior written consent of STERIMED. (IV) If any term of the present conditions is held to be void, unlawful or unenforceable, the remaining terms shall remain valid and the affected term(s) shall be substituted validly in such a manner as to achieve its (their) original purposes. (V) Neither the failure nor the delay of STERIMED to enforce any provision of this Agreement shall constitute a waiver of its rights mentioned therein. No waiver, consent or modification shall be binding upon the parties unless made in writing and signed by both parties. (VI) The rights and remedies reserved to STERIMED are cumulative and in addition to any other or future rights and remedies available under this Agreement, at law or in equity. (VII) The Supplier closely cooperates with STERIMED in the implementation of a Corporate Social Responsibility Programme, such commitment being essential. (VIII) Subject to reasonable courtesy, the Supplier accepts to be audited and to respond to any assessment request for the purpose of checking its compliance with its obligations.
