TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
Your attention is particularly drawn to the provisions of clause 11 of these conditions (Limitation of liability).
Andway, we, our and us: Andway Healthcare Limited, company number 07272966, registered office and trading address is Atlantis House, Manse Lane, Knaresborough North Yorkshire HG5 8LF, registered VAT number GB 651 3044 70, email address email@example.com.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Confirmation of Order: our confirmation of acceptance of your Order.
Intellectual Property Rights: patents, rights to inventions, copyright, moral rights, trade marks, business names and domain names, goodwill and the right to sue for passing off rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Service Specification: the description or specification for the Services provided by Andway to the Customer.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) 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.
2.2 The Order constitutes an offer by the Customer to purchase Products or Services or Products and Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when we enter into an agreement incorporating the Order or we issue a written Confirmation of Order at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Andway which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Products or illustrations or descriptions of the Services contained in our showroom, catalogues or brochures or on our website are produced for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract nor have any contractual force.
2.6 Although we have made every effort to display the colours accurately on our website and in our brochure, we cannot guarantee that those images accurately reflect the colour of the Products and the colour of the Products may vary from those images.
2.7 Any quotation given by Andway shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.9 You may only vary or cancel an Order that we have accepted in accordance with clause 2.3:
(a) if we consent in writing to such variation or cancellation; and
(b) you agree to pay for all work undertaken by us prior to you notifying us of your wish to vary or cancel the order.
3.2 To the extent that the Products are to be manufactured in accordance with a Products Specification supplied by you, you shall indemnify us 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 professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made against us in connection with our use of the Products Specification. This clause 3.2 shall survive termination of the Contract.
4.2 If we have agreed in writing that you will collect the Products from our premises or some other location, (Collection Location) you shall do so within 10 Business Days after we notify you that the Products are ready. In the event that you fail to collect the Products by then we may charge for storage of the Products until collection.
4.3 Delivery of the Products shall be completed on Products' arrival at the Delivery Location or, where we have agreed that you will collect the Products, on completion of loading of the Products at the Collection Location.
4.4 Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event , a delay caused by delivery companies, or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5 The Products will be placed at the nearest safe point to the Delivery Location. This may be on the drive or kerbside. The delivery driver cannot help handle the Products, so unless we agree otherwise it is your responsibility to arrange for someone to be at the Delivery Location with suitable handling equipment when the Products are delivered. If you do not, we may not be able to deliver the Products to the Delivery Location and the Products may have to be returned to our premises, in which case you may have to pay our reasonable charges for storage and/or rearranged delivery. We accept no liability for any loss or damage caused to the Products or suffered by you as a result of your failure to ensure that someone is at the Delivery Location to receive the Products when they are delivered.
4.6 If we fail to deliver the Products, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products.
4.7 We shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event, a failure caused by the delivery companies referred to in clause 4.4 or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.8 If you fail to collect or accept delivery of the Products within 10 Business Days after we notify you that the Products are ready, then except where such failure or delay is caused by a Force Majeure Event or by our failure to comply with our obligations under the Contract in respect of the Products:
4.9 If you do not collect the Products from us as arranged or if, after a failed delivery to you, you do not re-arrange delivery we will contact you for further instructions and will charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the contract and clause 8.2 will apply.
4.10 We may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.11 We will contact you with an estimated delivery date. Occasionally our delivery to you may be affected by a Force Majeure Event. See clause 4.9 for our responsibilities when this happens.
4.12 Delivery of the Products in an Order shall be completed when we deliver the Products to the address you gave us or you or a carrier organised by you collects them from us and the Products will be your responsibility and at your risk from that time.
4.13 It is your responsibility to inspect the Products upon delivery and notify us within 24 hours of their delivery to you of any damage in transit or items missing from your order.
(a) the defect arises because you or anyone else failed to follow our oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Products or (if there are none) good trade practice regarding the same;
(b) store the Products separately from all other goods held by you so that they remain readily identifiable as our property;
6.4 You agree that we are licensed to enter your premises to confirm you have complied with your obligations set out in this clause 6 and to recover any Products supplied by us that you have not paid for.
6.5 If before title to the Products passes to you, you become subject to any of the events listed in clause 12.1(c), or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided that the Products have not been irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Products and, if you fail to do so promptly, enter any of your premises or of any third party where the Products are stored in order to recover them.
7.2 We shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 We reserve the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
(d) provide us with such information and materials as we may reasonably require in order to supply the Products and the Services, and ensure that such information is complete and accurate in all material respects;
(g) keep all our materials, equipment, documents and other property (Andway Materials) at your premises in safe custody at your own risk, maintain Andway Materials in good condition until returned to us, and not dispose of or use Andway Materials other than in accordance with our written instructions or authorisation; and
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend delivery of the Products or performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays the our performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 8.2; and
(a) shall be the price set out in the Order or, if no price is quoted calculated on a time and materials basis calculated in accordance with our daily fee rates, as set out in our current price list at the date of the Contract;
(c) the cost of services provided by third parties and required by us for the performance of the Services; and
(d) the cost of any materials used in connection with the provision of the Services.
9.3 We reserve the right to increase prices by giving notice to you at any time before delivery, to reflect any increase in the cost of the Products to us that is due to foreign exchange fluctuations beyond our control.
9.4 In respect of Products we shall invoice you on or at any time after completion of delivery.
9.5 In respect of Services, we shall invoice you monthly in arrears.
9.7 All amounts payable under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract you shall, on receipt of a valid VAT, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.
9.8 To avoid the risk of fraud any payment by bank transfer must be made to the account stated on our invoice. Please disregard any e-mails or telephone calls purporting to contain details of any other bank account. Any payment you make will not reduce the amount you owe unless it is received by us and not by any third party
9.9 If you fail to make a payment due under the Contract by the due date, then, without limiting our remedies under clause 12 (Termination), you shall pay:
(a) all outstanding sums under the Contact and any other contacts between us whether such sums would otherwise be due for payment or not; and
(b) interest on whole of the amount due from the due date under the Contract until payment of the whole sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 8% a year above the Bank of England s base rate from time to time. You shall pay the interest together with the overdue amount.
9.10 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). We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
10.2 We grant to you a non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables (excluding materials you provide) for the purpose of receiving and using the Services and the Deliverables.
11.2 Subject to clause 11.1
(a) we shall under no circumstances whatever be liable to you, 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
(b) our total liability to you 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 120% of the price of the Products or Services.
(a) you do not make any payment to us when it is due and you still do not make payment within 14 days of us reminding you that payment is due;
(c) you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your 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 your assets or ceasing to carry on business; or
(d) we become aware of any situation or activity concerning you which might in our opinion either bring our business into disrepute or have a negative effect on our reputation; or
12.2 Without affecting any other right or remedy available to us, we may suspend the supply of Services or all further deliveries of Products under the Contract or any other contract between us if you fail to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1(c) or we reasonably believes that you are about to become subject to any of them.
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
(b) you shall return all of our Materials and any Deliverables or Products which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
13.2 If we end the Contract in the situations set out in clause 13.1 we will refund any money you have paid in advance for Products or Services we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of any breach of the Contract by you, together with storage, interest and other costs that we incur.
13.3 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination
14.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable; including epidemics, pandemics, Government regulations and recommendations, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, natural disasters or extreme adverse weather conditions, ocean shipping, short supply of raw materials, or default of suppliers or subcontractors.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended [and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party].
15.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
15.4 Without prejudice to the generality of clause 15.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Contract.
15.5 Without prejudice to the generality of clause 15.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(b) You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Contract without our prior written consent.
In these Conditions:
(b) 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 e-mail.
(c) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2(a); 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 e-mail, one Business Day after transmission. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
(d) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
16.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.7 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.
16.8 Jurisdiction. Each party irrevocably agrees that the courts of England 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.