The customer’s attention is drawn in particular to the provisions of clause 11.
“Business Day“ | a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business; |
“Conditions“ | the terms and conditions set out in this document as amended from time to time in accordance with clause 14.5; |
“Contract“ | the contract between Procare UK and the Customer for the sale and purchase of the Goods which is governed by these Conditions and if applicable the terms of the Trading Agreement; |
“Customer“ | the person or firm who purchases the Goods from Procare UK; |
“Delivery Location” | the agreed location where Procare UK is to deliver the Goods to the Customer in accordance with clause 4.2.1 or the location where the Customer will collect the Goods from Procare UK in accordance with clause 4.2.2; |
“Force Majeure Event“ | an event or circumstance beyond a party’s reasonable control; |
“Goods“ | the goods (or any part of them) set out in the Order; |
“Order“ | the Customer’s order for the Goods; |
“Specification“ | any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Procare UK ; |
“Trading Agreement” | an agreement between Procare UK and the Customer which forms part of the Contract for the sale of the Goods which sets out special terms for the supply of the Goods by the Procare UK to the Customer; |
“Procare UK “ | Procare UK Limited (registered in England and Wales with company number 04527914)
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1.1.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.1.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.1 Subject to clause 2.2 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 trade, custom, practice or course of dealing.
2.2 If there is any conflict or ambiguity between the terms of the Conditions and the Trading Agreement, the terms set out in the Trading Agreement will take priority.
2.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions and if applicable a Trading Agreement. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.4 The Order shall only be deemed to be accepted when Procare UK issues a written acceptance of the Order, at which point the Contract shall come into existence.
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 are inconsistent with these Conditions.
2.6 Any samples, drawings, descriptive matter or advertising produced by Procare UK and any descriptions or illustrations contained in Procare UK’s catalogues or brochures 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 Procare UK shall not constitute an offer. A quotation shall be valid for the period set out in the quotation and if no time period is provided a period of 20 Business Days from its date of issue.
3.1 The Goods are described on Procare UK’s website as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Procare UK against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Procare UK in connection with any claim made against Procare UK for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Procare UK’s use of the Specification. This clause 2 shall survive termination of the Contract.
3.3 Procare UK reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements
4.1 Procare UK shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Procare UK ’s reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable); and
4.1.2 if Procare UK requires the Customer to return any packaging materials to Procare UK, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Procare UK shall reasonably request. Returns of packaging materials shall be at Procare UK’s expense.
4.2 The Order shall confirm the delivery instructions including the Delivery Location and if:
4.2.1 Procare UK has agreed to deliver the Goods to the Customer it shall deliver the Goods to the location set out in the Order or such other location as the parties may agree at any time after Procare UK notifies the Customer that the Goods are ready; or.
4.2.2 the Customer is to collect the Goods then the Customer shall collect the Goods from Procare UK ’s premises at Unit 5/6 Lodge Causeway Trading Estate Fishponds Bristol BS16 3JB or such other location as may be advised by Procare UK prior to delivery within three Business Days of Procare UK notifying the Customer that the Goods are ready.
4.3 Delivery is completed either on:
4.3.1 the completion of unloading of the Goods at the Delivery Location if Procare UK is delivering the Goods in accordance with clause 4.2.1; or
4.3.2 the completion of loading of the Goods at the Delivery Location if the Customer is collecting the Goods in accordance with clause 4.2.2.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Procare UK 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 Procare UK with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Procare UK 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. Procare UK 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 Procare UK with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take or accept delivery of the Goods within three Business Days of Procare UK notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Procare UK’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Procare UK notified the Customer that the Goods were ready; and
4.6.2 Procare UK shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Procare UK notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, Procare UK 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 Procare UK 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, a pro rata adjustment shall be made to the Order invoice.
4.9 Procare UK may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 In these Conditions ‘lncoterms’ means the international rules for interpretation of trade terms of International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of ‘Incoterms’ shall have the same meaning in these Conditions, but if there is any conflict between the provisions of ‘Incoterms’ and these Conditions, the latter shall prevail.
5.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 5 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
5.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
5.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
5.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would he apparent on inspection and which is made at shipment or in respect of any damage during transit.
5.6 The Buyer undertakes not to offer the Goods for resale in any other country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
6.1 Procare UK warrants that on delivery, and for a period of 12 months from the date of delivery (“warranty period“), the Goods shall:
6.1.1 conform in all material respects with their description and any applicable Specification;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to clause 6.3, if:
6.2.1 the Customer gives notice in writing to Procare UK within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 1;
6.2.2 Procare UK is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by Procare UK) returns such Goods to Procare UK ’s place of business at the Customer’s cost unless otherwise agreed in writing,
Procare UK shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 Procare UK shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
6.3.2 the defect arises because the Customer failed to follow Procare UK’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;
6.3.3 the defect arises as a result of Procare UK following any drawing, design or Specification supplied by the Customer;
6.3.4 the Customer alters or repairs such Goods without the written consent of Procare UK;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.6 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, Procare UK shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.5 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.
6.6 These Conditions shall apply to any repaired or replacement Goods supplied by Procare UK.
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
7.2.1 Procare UK receives payment in full (in cash or cleared funds) for the Goods and any other goods that Procare UK 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
7.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Procare UK ’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify Procare UK immediately if it becomes subject to any of the events listed in clause 10.1; and
7.3.5 give Procare UK such information relating to the Goods as Procare UK may require from time to time.
7.4 Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Procare UK receives payment for the Goods. However, if the Customer resells the Goods before that time:
7.4.1 it does so as principal and not as Procare UK’s agent; and
7.4.2 title to the Goods shall pass from Procare UK to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.1, then, without limiting any other right or remedy Procare UK may have:
7.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 Procare UK may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) 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.
8.1 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 the Procare UK price list provided to the Customer and in force as at the date of delivery or if applicable in the Trading Agreement.
8.2 The price of the Goods:
8.2.1 excludes amounts in respect of value added tax (“VAT“), which the Customer shall additionally be liable to pay to Procare UK at the prevailing rate, subject to the receipt of a valid VAT invoice; and
8.2.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer unless otherwise agreed in writing by Procare UK.
8.3 Procare UK may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.4 The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice unless otherwise agreed in writing by Procare UK. Payment shall be made to the bank account nominated in writing by Procare UK . Time for payment is of the essence.
8.5 If the Customer fails to make any payment due to Procare UK under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Procare UK may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Procare UK to the Customer.
Procare UK may set and vary credit limits from time to time and withhold supplies of the Goods if the Customer exceeds such credit limit.
10.1 Without limiting its other rights or remedies, Procare UK may terminate the Contract with immediate effect by giving written notice to the Customer if:
10.1.1 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 10 days of that party being notified in writing to do so;
10.1.2 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), 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;
10.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
10.1.4 the Customer’s financial position deteriorates to such an extent that in Procare UK’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2 Without limiting its other rights or remedies, Procare UK may suspend provision of the Goods under the Contract or any other contract between the Customer and Procare UK if the Customer becomes subject to any of the events listed in clause 10.1.1 to clause 10.1.4, or Procare UK 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 the Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, Procare UK 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.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to Procare UK all of Procare UK’s outstanding unpaid invoices and interest.
10.5 Termination of the Contract 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 that existed at or before the date of termination.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11.1 Nothing in these Conditions shall limit or exclude Procare UK’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
11.1.4 defective products under the Consumer Protection Act 1987; or
11.1.5 any matter in respect of which it would be unlawful for Procare UK to exclude or restrict liability.
11.2 Subject to clause 1:
11.2.1 Procare UK shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.2 Procare UK’s total liability to the Customer in respect of all 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 100% of the price of the Goods.
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. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 30 days written notice to the affected party.
13.1 The Customer shall not make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of the Contract, the Goods or the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of Procare UK , except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
14.1 Assignment and other dealings
14.1.1 Procare UK may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, 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 Procare UK.
14.2 Confidentiality
14.2.1Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 14.2.2. For the purposes of this clause, “group “means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
14.2.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.2.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14.3 Entire agreement
14.3.1 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.
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.
14.4 Anti-bribery
14.4.1 For the purposes of this clause 14.4 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Laws.
14.4.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:
(a) all of that party’s personnel;
(b) all others associated with that party; and
(c) all of that party’s subcontractors,
included in the performance of the Contract so comply.
14.4.3 Without limitations to clause 14.4.2, neither party shall make or receive any bribe or other improper payment, or allow any such payment to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedure to ensure that such bribes or payments are not made directly or indirectly on its behalf.
14.4.4 Each party shall immediately notify the other as soon as it becomes aware of any breach or possible breach of this clause 14.4.
14.5 Variation
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6 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.
14.7 Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.8 Notices
14.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
14.8.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.1; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
14.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.9 Third party rights
No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
14.10 Governing law
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.
14.11 Jurisdiction
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.
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