1 Interpretation
1.1 In these Conditions:
 “ASSOCIATED COMPANY” means any company which is, in relation to another company, its holding company or its subsidiary or a subsidiary of its holding company in accordance with sections 1159 and Schedule 6 of the Companies Act 2006;
 ‘BUYER’ means the person(s), company, hospital trust or regional health authority that purchases the Goods and/or Services from the Seller;
CONDITIONS’ means the general terms and conditions of sale set out in this document;
 ‘CONTRACT’ means the contract between the Seller and the Buyer for the purchase and sale of the Goods and/or Services;
‘GOODS’ means the medical instruments or devices (including any instalment of the medical instruments or devices or any parts for them) which the Seller is to supply in accordance with these Conditions;
 ‘SELLER’ means UNITED DRUG MEDICAL LIMITED, a company incorporated in England (company number 2090807) or any of its Associated Companies or trading divisions, including (but not limited to) Pyramed, Mantis Surgical, New Splint and Unified Medical Products.
 ‘SERVICES’ means the services or works and any part of the services or works supplied by the Seller in connection with the Goods.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Basis of the Contract
2.1 These Conditions apply to (and will form part of) the Contract between the Seller and the Buyer to the exclusion of all other terms and conditions (including terms or conditions endorsed on, delivered with or  contained in the Buyer’s acceptance, order, confirmation of order, specification or other document).

2.2 Notwithstanding any terms or  conditions endorsed on,  delivered with or contained in the Buyer’s acceptance,  order, confirmation of order, specification or other  document, each order by the Buyer or acceptance by  the Buyer of a quotation from the Seller shall be deemed to be an offer by the Buyer to buy Goods and/or Services subject to these Conditions.

2.3  No order placed by the Buyer shall be deemed accepted   and no Contract shall come into existence between the  Seller and the Buyer until such order is accepted by the Seller or (if earlier) the Seller delivers the Goods and/or Services to the Buyer.

2.4  The Buyer shall be responsible to the Seller for ensuring the accuracy and completeness of the terms of any order (including any applicable specification) submitted by the Buyer.

2.5  No order placed by the Buyer can be withdrawn by the Buyer unless the Buyer notifies the Seller within 2 days’ of placing the order and no Contract may be cancelled by the Buyer except with the Seller’s written consent.

2.6  No variation to these Conditions or to any quotations from  the Seller shall be binding unless expressly agreed in writing and executed by a duly authorised representative on behalf of the Seller.

3. Description
3.1 The quantity, quality and description of the Goods and/or Services shall, subject as provided in these Conditions, be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller pursuant to Condition 2.3).

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them.  They shall not form part of the Contract and this is not a sale by sample.

4. Price of the Goods
4.1 The price of the Goods and/or Services shall be as set out in the Seller’s quotation or, where no price has been quoted, the price listed in the Seller’s published price list current at the date of acceptance of the Buyer’s order. All prices quoted in the quotation are valid for 30 days only or if earlier, acceptance by the Buyer.

4.2  Provided that the Seller has not previously withdrawn the quotation, if the Buyer accepts a quotation after the expiration of the 30 days period referred to in Condition 4.1, the Seller reserves the right to increase the price of the Goods and/or Services. Any increase shall be notified in writing to the Buyer and the Buyer has 5 days from receipt of the notice to accept or reject the price increase.  If the Buyer rejects the price increase, the Contract shall be terminated forthwith and neither party shall have any further liability thereunder to the other party. 

4.3 Without prejudice to the foregoing Conditions, the Seller reserves the right at any time to increase the price of its Goods and/or Services, but not so far as it varies the price of the Goods and/or Services provided in any valid or subsisting quotation.

4.4 Except as otherwise stated under the terms of any  quotation or in any price list of the Seller, and unless  otherwise agreed in writing between the Buyer and the  Seller, all prices are given by the Seller on an ex works basis (EXW according to Incoterms 2000).

4.5 The price for the Goods shall be exclusive of any Value Added Tax or other similar taxes or levies or insurance, which the Buyer shall be additionally liable to pay to the Seller. The Seller reserves the right to charge the Buyer a fee to deliver the Goods to the Buyer’s premises, as may be notified to the Buyer. Such fee will be charged in addition to the price of the Goods and/or Services.

5. Terms of Payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Buyer shall pay the price for the Goods and/or Services within 30 days of the date of the Seller’s invoice together with VAT and other similar taxes or levies or insurance. The time for payment shall be of the essence and payment of the price of Goods and/or Services is due in pounds Sterling unless agreed otherwise.

5.2 The Seller shall invoice only in respect of:
5.2.1 such Goods and/or Services which have been delivered, and
5.2.2 such other charges which have at the date of the invoice been incurred. 

5.3 No payment shall be deemed to have been received until the Seller has received cleared funds.

5.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.

5.5 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.5.1 cancel the Contract or suspend any further deliveries to the Buyer; or
5.5.2 appropriate any payment made by the Buyer to such of the Goods and/or Services (or the goods or services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.5.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid in the manner and at the rate set out in the Late Payment of Commercial Debts Regulations 2002 (SI 2002/1674).

6. Delivery
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises as notified in the written acknowledgment or in the Buyer’s order.

6.2 The Seller shall ensure that each delivery is  accompanied by a delivery note which shows, inter alia, the quantity and description of Goods delivered and, in the case of part delivery, the outstanding balance remaining to be delivered.

6.3 The Seller may deliver the Goods by separate instalments.  Unless otherwise agreed, each separate instalment shall be invoiced and paid for in accordance with the provisions of Condition 5. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment. 

6.4 Any dates specified for delivery of the Goods and/or Services are given in good faith as an estimate only. If no dates for delivery are specified, then delivery shall be within a reasonable time. Time for delivery shall not be of the essence of the Contract and shall not be made so by customer service of any notice. The Goods and/or Services may be delivered by the Seller in advance of the specified delivery date upon giving reasonable notice to the Buyer.

6.5 If the Buyer fails to take delivery of the Goods and/or Services, or fails to give the Seller adequate delivery instructions at the time stated for delivery, except where such failure is directly due to circumstances set out in Condition 8.10 or the Seller’s default, then, without prejudice to any Seller right or remedy-
6.5.1 risk in the Goods shall pass to the Buyer;
6.5.2 the Goods shall be deemed to have been delivered;
6.5.3 the Seller may store the Goods until delivery,  whereupon the Buyer shall be liable for all related costs  and expenses (including, without limitation, storage and  insurance);
6.5.4 in the event of any failed redelivery, sell the Goods at the best price readily obtaining 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
6.5.5 make liable the Buyer for payment of a figure up to fifty per cent (50%) of the anticipated cost of any Services by way of compensation to the Seller, which shall be paid within 30 days of the Sellers written demand, in accordance with Condition 5.

6.8 In respect of any Goods and/or Services, the Seller reserves the right to sub-contract, in whole or in part, the supply without notice to the Buyer, save as required by the Buyer site regulations or security requirements.

7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery.

7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title and property in and to the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and/or Services and all other goods and/or services agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 The Buyer’s right to possession of the Goods shall terminate immediately in respect Goods which have been delivered by the Seller to the Buyer and which have not been paid for by the Buyer, if any of the events listed in Condition 9.1 occur. Where applicable, any Services being provided by the Seller to the Buyer shall also terminate if any of the events listed in 9.1 occur

7.4 Until such time as the title and property in the Goods passes to the Buyer, the Buyer shall:
7.4.1 hold the Goods on a fiduciary basis as the Seller’s bailee;
7.4.2 store the Goods (at no cost to the Seller) separately  from all other goods of the Buyer or any third party in such a  way that they remain readily identifiable as the Seller’s property;
7.4.3 not destroy, deface or obscure any identifying mark or  packaging on or relating to the Goods; and
7.4.4 maintain the Goods in satisfactory condition and keep  them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.

7.5 Until such time as the title and property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. For this purpose the Buyer grants the Seller, its agents and employees (with or without vehicles) an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession is terminated, to recover them. In the event that any Goods have been resold by the Buyer, the Buyer undertakes to hold on trust the proceeds of any sale or disposal for the account of the Seller. In no event shall the Buyer be entitled to resell or dispose of  any Goods if any of the events listed in Condition 9.1 occur, or in the reasonable opinion of the Seller, any of the events listed in Condition 9.1 are likely to occur and the Seller has notified the Buyer of same.

7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

7.7 Notwithstanding the provisions of Condition 7, legal and beneficial title to all intellectual property rights subsisting in the Goods and/or Services, including (without limitation) any copyright, patents, designs, trade and service marks, belong to, vest in and shall remain vested in the Seller or, where appropriate, a third party supplier.

8. Warranties
8.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour (but shall not be obliged) to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.

8.2 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 6 months from delivery.

8.3 Subject to the conditions set out below, the Seller shall perform the Services (where applicable) with reasonable skill and care and in accordance with generally recognised commercial practices and standards of their industry. The Seller’s sole liability for breach of this warranty shall be, at its option, to take all reasonable steps to remedy any failure to supply the Services which are notified to the Seller, or to re-perform or perform correctly the Services in respect of which this warranty has been breached. Any claim for breach of this warranty must be made within thirty (30) days of the date of completion of the Services for which the claim is made.
 
8.4 The above warranties are given by the Seller subject to the following conditions:
8.4.1 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing) and the manufacturer’s instructions for use, misuse (which shall include any use by a person other than a qualified medical practitioner or by a qualified medical practitioner who has not been trained to use the Goods or any other misuse by a qualified medical practitioner), or alteration or repair of the Goods without the Seller’s approval;
8.4.2 the Seller shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the defect arises as a result of the Seller following any request or specification supplied by the Buyer;
8.4.3 the Seller shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the Goods and/or Services differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
8.4.4 the Seller shall be under no liability where the Buyer continues to make any further use of such defective Goods after giving the Seller notice of the same under Condition 8.5;
8.4.5 the Seller 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 Services has not been paid by the due date for payment and remains unpaid;
8.4.6 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller as referred to in Condition 8.1 above.
 
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with description shall (whether or not delivery is refused by the Buyer) be notified in writing to the Seller within 5 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 5 days after discovery of the defect or failure.  The Buyer (if asked to do so by the Seller and where possible) shall return the defective Goods to the Seller’s place of business at the Sellers’ cost, so that the Seller can examine the Goods.

8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet description is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace or repair the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer and the remedies provided in this Condition 8.6 shall be the Seller’s sole liability for breach of the warranty in Condition 8.2.

8.7 Any Goods replaced shall belong to the Seller and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 6 month warranty provided in Condition 8.2.

8.8 As otherwise provided in these Conditions and except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term implied by statute or common law, for any costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or Services or their use or (in the case of Goods) resale by the Buyer.

8.9 Subject to Condition 8.8:
8.9.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of Goods and/or Services; and
8.9.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arises out of or in connection with the Contract.

8.10 The Seller 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 of the Seller’s obligations in relation to the Contract, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

8.10.1 Acts of God, explosion, flood, tempest, fire or accident or extreme adverse weather conditions;
8.10.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.10.3 import or export regulations or embargoes;
8.10.4 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.10.5 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.10.6 power failure or breakdown in machinery.

9. Insolvency
9.1 Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to suspend the Contract or cancel the Contract or suspend any further deliveries under the Contract without liability to the Seller if:
9.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 anything analogous to any of the above occurs to the Buyer or any of Associated Company of the Buyer in any jurisdiction.

10. Assignment
10.1 The Seller may assign the Contract or any part of it to any person, firm or company.

10.2 The Buyer shall not be entitled and assign the Contract or any part of it without the prior consent of the Seller, such consent to be agreed in writing by a duly authorised representative on behalf of the Seller.

11. Consignment Stock
11.1 Where any of the Goods supplied pursuant to these terms and conditions are sent on a consignment basis, the following additional terms shall apply to such consignment Goods (in addition to all other terms and conditions contained herein, as applicable):
11.1.1 the Buyer shall ensure that the insurance with a reputable insurance company required pursuant to Condition 7.4.4 also provides for usual risks insurance cover in respect of the risk of loss or damage to consignment Goods whilst same are in the Buyer’s possession;
11.1.2 any consignment Goods sold and/or used by the Buyer shall be replaced forthwith by placing an order with the Seller and such consignment stock sold and/or used shall be invoiced at the then current price (or such price as may be agreed in writing by the Seller);
11.1.3 Goods supplied pre-packaged and sterile shall be deemed used by the Buyer if the packaging has been opened, damaged or marked in any way;
11.1.4 the Buyer agrees to return any consignment Goods to the Seller within seven days of receiving a written request for their return. In the event the consignment Goods are not retuned, the Buyer will accept and pay an invoice that will be raised in connection with such consignment Goods at the then current price;
11.1.5 the Buyer shall be responsible for the rotation of the consignment Goods such that the oldest consignment Goods are used/sold in the first instance. In the event that the Seller discovers that the Buyer has used/sold newer consignment Goods when older consignment Goods were available and could have been used/sold by the Buyer, the Buyer shall be invoiced by the Seller at the then current price (or such price as may be agreed to by the Seller) for such older consignment Goods in circumstances where the Buyer fails to use/sell such older consignment Goods;
11.1.6 consignment Goods which pass their expiry date shall become the property of the Buyer and will be invoiced by the Seller at the then current price (or such price as may be agreed to by the Seller); and
11.1.6 the Seller reserves the right to inspect the consignment Goods on a regular basis at a time agreed with personnel of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed). Any consignment Stock found to be missing by the Seller shall be deemed used/sold and will be invoiced at the then current price.

12 Sale or Return
12.1 Where any Goods supplied pursuant to these terms and conditions are agreed by the Seller (in its sole discretion) to be delivered to the Buyer on a “Sale or Return/SOR” basis, the following additional terms shall apply to such SOR Goods (in addition to all other terms and conditions contained herein, as applicable):
12.1.1 the Buyer shall have three (3) days (or such other time as may be expressly agreed by the Seller) to return such Goods and in the event they are not returned within the applicable period above or are used by the Buyer, the Buyer shall be deemed to have accepted and purchased the Goods;
12.1.2 to the extent the SOR Goods returned are damaged or if the packaging has been opened, damaged or marked in any way, such SOR Goods will be deemed used and purchased by the Buyer; and
12.1.3 in the event that all Goods supplied on an SOR basis pursuant to any one order are returned to the Seller, the Seller shall be entitled to charge (whether by way of set off or otherwise) the Buyer a restocking fee to the Seller in the amount of £50 (fifty pounds sterling) or 15% (fifteen per cent) of the total invoice value for such Goods, whichever is the greater, provided that such restocking fee shall not be applicable where the Buyer has used some (but not all) of the Goods supplied on an SOR basis pursuant to any one order.

13. General
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.3 A person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) shall not have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties such agreement must refer to the Condition 13.3

13.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

13.5 The Contract shall be governed by the laws of England, and the parties agree to submit to the exclusive jurisdiction of the English courts. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any contract made hereunder.