Standard Terms and Conditions of Sale of Meditrade UK Ltd.
1. Definitions and Interpretation
In these Conditions:
1.1 the following words and expressions have the following meanings unless the context otherwise requires:
any law and any legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body and any legally binding industry code of conduct or guideline, in each case, according to the law of England and Wales, and which, in each case, relates to MeditradeUK or the Customer, the Contract and/or the Goods and which is in force from time to time
a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales
these standard terms and conditions of supply, as varied from time to time in accordance with Condition 17.4
the meaning given to it in Condition 14.1
the contract between MeditradeUK and the Customer for the supply of the Goods formed in accordance with Condition 2.1
the person named as the customer in the Order
the time at which delivery of the Goods is deemed to occur in accordance with Condition 4.1
the meaning given to it in Condition 14.1
“Force Majeure Event”
any event or circumstance to the extent it is beyond MeditradeUK’s reasonable control, including: (a) act of God; (b) war (whether declared or not), hostilities, invasion, act of foreign enemies, civil war, insurrection, riot, rebellion, revolution, military or usurped power, civil commotion, act or threat of terrorism, sabotage or piracy; (c) lightning, earthquake, fire, explosion, flood, storm, or severe adverse weather condition; (d) theft, malicious damage; (e) any labour disturbance such as boycott, strike, lockout, industrial dispute (whether affecting the workforce of MeditradeUK and/or any other person); (f) any destruction, breakdown or failure of equipment; (g) any inability to obtain or delay in obtaining supplies or materials; (h) any prolonged breakdown of transport, telecommunications, information or energy systems; (i) any Public Health Event; or (j) any change in Applicable Law; (k) any failure or default of a supplier or sub-contractor of MeditradeUK
the goods set out in the Order
in respect of a person, its Parent Undertakings, its Subsidiary Undertakings and the Subsidiary Undertakings of any of its Parent Undertakings from time to time (“Parent Undertaking” and “Subsidiary Undertaking” having the meanings set out in section 1162 of the Companies Act 2006)
a party is Insolvent where it: (a) gives notice under section 84 of the Insolvency Act 1986 of, or proposes or passes a resolution for, its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up (save for the purpose of a solvent reconstruction or amalgamation); (b) has a winding up petition presented against it; (c) has a winding-up order made or a notice of striking off filed in respect of it; (d) (i) takes steps or any other person takes any steps or actions in connection with the appointment of an administrator in respect of it; (ii) has an administration order or an application for an administration order made in respect of it; or (iii) has a notice of appointment of an administrator or a notice of intention to appoint an administrator filed in respect of it at any court; (e) proposes, makes or is subject to: (i) a company voluntary arrangement; (ii) a composition with its creditors generally; (iii) an application to a court of competent jurisdiction for protection from its creditors generally; (iv) a scheme of arrangement under Part 26 of the Companies Act 2006 (save for the purpose of a solvent reconstruction or amalgamation); or (v) a scheme of arrangement under Part 26A of the Companies Act 2006; (f) has a receiver, LPA receiver, fixed charge receiver, receiver and manager, administrative receiver or court appointed receiver or a provisional liquidator appointed over any of its assets, undertaking or income; (g) takes any step in respect of obtaining a moratorium under Part A1 of the Insolvency Act 1986; (h) ceases to trade or appears, in the reasonable opinion of the other party, to be likely to cease to trade; (i) (i) is unable to pay its debts as they fall due; or (ii) the value of its assets are less than its liabilities, including its contingent and prospective liabilities; (j) has any distraint, execution, taking of control or recovery or other process levied or enforced on any of its property; or (k) is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction
“Intellectual Property Rights”
all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know-how, registered trade marks, registered designs, utility models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions
liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence
the Customer’s order for the supply of Goods by MeditradeUK
MeditradeUK’s written acceptance of the Order
the prices for the Goods set out in the Order Confirmation, as those prices may be varied from time to time in accordance with Condition 7.4
“Public Health Event”
any: (a) outbreak of disease; (b) control, direction, law or measure imposed issued or administered by any governmental, statutory or regulatory body or person imposed or administered as a response to an outbreak of disease or as a means of preventing the significant transmission of a disease; or (c) the restriction of travel by or isolation or quarantining of any individual employed or engaged by MeditradeUK or any member of its supply chain where such individual is involved in the supply of any aspect of the Goods as a response to any government or regulatory guidance or direction, in each case anywhere in the world
the meaning given to it in Condition 14.1
the meaning given to it in Condition 12.8.2
in respect of a party, that party’s Group Companies and its and their officers, directors, employees, consultants and professional advisers and, where MeditradeUK is the Recipient, MeditradeUK’s agents and sub-contractors; and “Representative” means any of them
value added tax
the period starting on Delivery and ending on the earlier of: (a) the time at which the relevant Good is incorporated into another product or used in a manufacturing process; or (b) expiry of a period of 1 year from and including the date of Delivery
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
1.3 unless the context otherwise requires:
1.3.1 references to the singular include the plural and vice versa and references to any gender include every gender;
1.3.2 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.5 references to re-enactment of any statute or statutory provision (including any subordinate legislation) include references to the preservation, continuation of effect, conversion or incorporation of any of them into the law of England and Wales, Scotland and Northern Ireland, whether by the European Union (Withdrawal) Act 2018 or any other legislation relating to the withdrawal of the United Kingdom from the European Union;
1.6 any reference in these Conditions to trade marks, designs or design rights includes an EU trade mark, registered Community design or unregistered Community design and any United Kingdom equivalent right granted in anticipation of or on or after the United Kingdom’s withdrawal from the European Union;
1.7 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them; and
1.8 references to “in writing” or “written” include e-mail.
2.1 The Order constitutes an offer by the Customer to purchase Goods from MeditradeUK on these Conditions. A contract for the supply of Goods by MeditradeUK to the Customer on these Conditions will be formed when MeditradeUK accepts the Order by issuing an Order Confirmation to the Customer. MeditradeUK is under no obligation to accept the Order.
2.2 These Conditions are the only terms and conditions on which MeditradeUK will supply goods to the Customer and will apply to the exclusion of all other terms and conditions including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.3 Delivery will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
2.4 MeditradeUK will be entitled, at its discretion, to deliver Goods by separate instalments. MeditradeUK will be entitled to invoice the Price for each instalment separately in accordance with Condition 7.5. Each instalment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an instalment will give the Customer the right to cancel or terminate any other contract.
3. The Goods
3.1 MeditradeUK will be entitled at any time to:
3.1.1 vary the design, or finish of Goods and/or their packaging; and/or
3.1.2 substitute any materials or parts which are used in Goods and which are unavailable for any reason with alternative materials or parts,
3.1.3 this does not materially affect their quality or performance; or
3.1.4 this is necessary to comply with Applicable Law,
and MeditradeUK will use reasonable endeavours to give the Customer prior written notice of any such variation or substitution.
3.2 All samples, drawings, descriptive and illustrative matter and advertising issued or published by MeditradeUK (or the manufacturer of the Goods) whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximate idea of the relevant Good.
3.3 The Contract is not a sale by sample.
4.1 The Goods will be delivered in accordance with the Incoterm that is stated in the Order Confirmation. Delivery of the Goods will be deemed to occur when delivery occurs in accordance with the relevant Incoterm stated in the Order Confirmation. To the extent only of any conflict or inconsistency between the relevant Incoterm stated in the Order Confirmation and these Conditions, the relevant Incoterm stated in the Order Confirmation will take precedence.
4.2 MeditradeUK will use reasonable endeavours to deliver Goods on the estimated delivery date set out in the Order Confirmation, but time for delivery of the Goods will not be of the essence of the Contract. Any delivery dates given by MeditradeUK are estimates only and MeditradeUK will use reasonable endeavours to notify the Customer of any changes to such estimated delivery dates from time to time.
4.3.1 the Goods have not been (as applicable according to the relevant Incoterm stated in the Order Confirmation) delivered under Condition 1 or made available for collection under Condition 4.1 within 5 Business Days from and including the estimated delivery date set out in the Order Confirmation (or such other estimated delivery date as notified by MeditradeUK from time to time); and
4.3.2 MeditradeUK fails to (as applicable according to the relevant Incoterm stated in the Order Confirmation) deliver those Goods under Condition 1 or make those Goods available for collection under Condition 4.1 within 20 Business Days (or such other period as notified by MeditradeUK from time to time) of a written notice referring to this Condition 4.3 and setting out the Customer’s rights under it being given by the Customer; and
4.3.3 MeditradeUK is not, at the time of such written notice from the Customer, affected by a Force Majeure Event,
the Customer will be entitled to cancel the Contract by giving written notice to that effect to MeditradeUK. If the Customer exercises its right of cancellation MeditradeUK will refund to the Customer any monies which the Customer has already paid to MeditradeUK under the Contract and the Customer will not be required to pay any further monies to MeditradeUK under the Contract. Subject to Condition4, MeditradeUK’s sole Liability for its failure to deliver the Goods will be limited to the price (exclusive of VAT) paid by the Customer in obtaining replacement goods of equivalent description and quality in the cheapest market available, less the Price of the Goods.
4.4 Save as provided in Condition 3, the Customer will not be entitled to cancel the Contract or to reject any Goods by reason of a delay in delivery or failure to deliver.
4.5 If Delivery occurs but the Customer fails to (as applicable according to the relevant Incoterm stated in the Order Confirmation) accept delivery or collect the Goods, MeditradeUK will be entitled to:
4.5.1 store or arrange for storage of the Goods until the Customer accept delivery or collects them or they are disposed of under Condition 5.2 (as applicable);
4.5.2 following written notice to the Customer, treat the Contract as repudiated by the Customer and dispose of the Goods in any way it sees fit, including by sale to another person. If MeditradeUK sells any of the Goods under this Condition 5.2 at a price which is less than the relevant Price, MeditradeUK will be entitled to charge the Customer for the shortfall; and
4.5.3 charge the Customer for all costs and expenses which MeditradeUK incurs under Conditions 4.5.1 and 4.5.2.
5.1 The Customer will inspect the Goods on Delivery and will within 1 Business Day from and including the date of Delivery give written notice to MeditradeUK of any breach of the warranties in Condition 1 in relation to those Goods.
5.2 Conditions 8.2.3, 8.2.3, 8.3, 8.4, 8.5 and 8.6 will apply to any breach of warranty notified to MeditradeUK under Condition 5.1.
5.3 If the Customer does not give notice to MeditradeUK under Condition 1 in respect of a Good, the Customer will be deemed to have accepted that Good on expiry of the 1 Business Day period from and including the date of Delivery.
6. Passing of Risk and Retention of Title
6.1 Risk of damage to or loss of the Goods will pass to the Customer on Delivery.
6.2 Subject to Conditions 3 and 6.4, legal and beneficial ownership of the Goods will not pass to the Customer until MeditradeUK has received in full in cleared funds:
6.2.1 all sums due to it in respect of the Goods; and
6.2.2 all other sums which are or which become due to MeditradeUK from the Customer on any account whatsoever.
6.3 The Customer may resell the Goods in the ordinary course of its business and, if it does so, legal and beneficial ownership of Goods will pass to the Customer immediately prior to the Customer entering into a binding contract for the sale of those Goods.
6.4 MeditradeUK may, by giving written notice to the Customer, pass legal and beneficial ownership of the Goods (or any of them) to the Customer at any time before such ownership would otherwise have passed to the Customer.
6.5 Until ownership of the Goods has passed to the Customer, the Customer will:
6.5.1 hold the Goods on a fiduciary basis as MeditradeUK’s bailee;
6.5.2 store the Goods (at no cost to MeditradeUK) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as MeditradeUK’s property;
6.5.3 maintain the Goods in satisfactory condition; and
6.5.4 keep the Goods insured for their full price against damage or loss on an “all risks” basis, whenever requested by MeditradeUK, produce a copy of the policy of insurance in respect of the Goods to MeditradeUK, do nothing and not omit to do anything which in consequence permits any insurer to refuse to indemnify the Customer in full in accordance with the terms of any insurance policy maintained in respect of the Goods in respect of any claim made under any such insurance policy; and
6.5.5 ensure that any insurance proceeds received by the Customer under the relevant policy are applied to repairing damaged Goods or, in the event that they are not so applied, hold such proceeds on trust for MeditradeUK.
6.6 The Customer may use the Goods in the ordinary course of its business before ownership has passed to it.
6.7 The Customer’s right to possession, use and resale of the Goods will terminate immediately if, before ownership of the Goods passes to the Customer in accordance with Conditions 2, 6.3 or 6.4:
6.7.1 the Customer becomes Insolvent;
6.7.2 the Customer fails to pay any sum due to MeditradeUK under the Contract on or before the due date; or
6.7.3 the Contract expires or terminates for any reason.
6.8 Once the Goods are delivered to the Customer, MeditradeUK will be entitled to recover payment for the Goods (including by way of an action for the price) notwithstanding that ownership of any of the Goods has not passed from MeditradeUK.
6.9 The Customer grants, and will procure that the owner of any third party premises grants, the MeditradeUK, its agents, employees and sub-contractors 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 Customer’s right to possession, use and resale has terminated, to recover them.
6.10 If the Customer’s right to possession, use and resale of the Goods terminates in accordance with Condition 7, MeditradeUK will be entitled to issue the Customer with a credit note for all or any part of the price of the Goods together with value added tax thereon.
6.11 MeditradeUK’s rights contained in this Condition 6 will survive expiry or termination of the Contract however arising.
7. Price and Payment
7.1 The Customer will pay the Prices to MeditradeUK in accordance with this Condition 7.
7.2 Unless otherwise agreed in writing by MeditradeUK in advance, the Prices are exclusive of packaging, insurance, carriage and delivery costs which will be payable by the Customer in addition to the Prices.
7.3 Any sum payable under the Contract is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
7.4 MeditradeUK will be entitled to vary the Prices at any time by giving written notice to the Customer to reflect any variation in the cost of supplying the Goods, or in the transport costs, material production costs, wage costs, energy costs and/or customs duties which arises as a consequence of any Force Majeure Event and/or any change in Applicable Law and/or any variation in the Customer’s requirements for the Goods and/or any information provided by the Customer being inaccurate or incomplete and/or any failure or delay by the Customer in providing information.
7.5 Unless otherwise agreed in writing by MeditradeUK in advance, MeditradeUK will be entitled to invoice the Customer for the Prices for the Goods and any packaging, insurance, carriage and delivery costs payable by the Customer in addition to the Prices following Delivery.
7.6 Each invoice will be payable by the Customer in accordance with the payment terms set out in the Order Confirmation (or otherwise notified by MeditradeUK). The Customer will make all payments in the currency stated in the Order Confirmation (or otherwise notified by MeditradeUK) in available cleared funds by electronic transfer to MeditradeUK’s bank account nominated on the relevant invoice or such other bank account as MeditradeUK may nominate from time to time.
7.7 Time will be of the essence in respect of the timescales for payment of invoices set out in Condition 6 and any timescales which may be substituted for them in accordance with Condition 17.4.
7.8 Notwithstanding any purported contrary appropriation by the Customer, MeditradeUK will be entitled, by giving written notice to the Customer, to appropriate any payment by the Customer to any invoice issued by MeditradeUK.
7.9 If any sum payable under the Contract is not paid on or before the due date for payment MeditradeUK will be entitled to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.10 If the Customer fails to make any payment due to MeditradeUK under the Contract or any other contract between the Customer and MeditradeUK within 5 Business Days after the due date, MeditradeUK will be entitled to withhold further deliveries of Goods until payment has been made.
7.11 If the Customer fails to make any payment due to MeditradeUK under the Contract on or before the due date or if the Customer becomes Insolvent or if MeditradeUK has any reasonable concerns regarding the Customer’s financial standing, all invoices issued will immediately become due and payable.
7.12 Save as otherwise expressly provided in these Conditions or required by law, all payments to be made by the Customer to MeditradeUK under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
7.13 Following expiry or termination of the Contract:
7.13.1 MeditradeUK will be entitled to invoice all Prices and any packaging, insurance, carriage and delivery costs incurred which have not yet been invoiced; and
7.13.2 all invoices (including any invoices issued under Condition 7.13.1) will become immediately due and payable by the Customer.
8.1 MeditradeUK warrants to the Customer that during the Warranty Period the Goods will be free from material defects in design, materials or workmanship.
8.2 If, at any time during the Warranty Period, the Customer becomes aware of a breach of either of the warranties at Condition 1, the Customer will:
8.2.1 give written notice of the breach to MeditradeUK prior to expiry of the Warranty Period;
8.2.2 at MeditradeUK’s option either return to MeditradeUK the relevant Good or permit MeditradeUK or its agent or sub-contractor to inspect it at the Customer’s premises; and
8.2.3 provide to MeditradeUK all information and assistance which MeditradeUK may require to investigate the alleged breach.
8.3 Subject to Condition 4, MeditradeUK’s only Liability for breach of either of the warranties at Condition 8.1 will be, at MeditradeUK’s option, to repair or replace the relevant Good.
8.4 The Customer’s only remedy for breach of the obligation at Condition 3 will be in damages.
8.5 Subject to Condition 4, MeditradeUK will not have any Liability for a breach of a warranty at Condition 8.1 if:
8.5.1 the Customer does not comply with its obligations at Condition 2 in respect of the breach;
8.5.2 notice of the breach should have been but was not given to MeditradeUK under Condition 1;
8.5.3 the relevant defect was caused by damage in transit after Delivery;
8.5.4 the relevant defect was caused by fair wear and tear;
8.5.5 the relevant defect was caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, storage or failure to comply with instructions provided by MeditradeUK or the manufacturer; or
8.5.6 the Customer makes further use of the relevant Good after discovering the relevant breach.
The warranties under Condition 1 will apply to any Goods which are repaired or replaced under Condition 8.3 for the remainder of the original Warranty Period.
8.6 Subject to Condition 9.4, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract.
9. Exclusions and Limitations of Liability
The Customer’s attention is particularly drawn to this Condition.
9.1 Subject to Condition 4, MeditradeUK’s entire Liability for any non-delivery of Goods or failure to deliver the Goods in accordance with the timescales set out or referred to in the Contract will be as set out in Condition4.3 and MeditradeUK will have no other Liability for any such non-delivery or failure to deliver. Such Liability will be subject to Condition 9.2 and will be taken into account in calculating whether the financial limit in Condition 9.2 has been reached.
9.2 Subject to Condition 4, MeditradeUK’s maximum aggregate Liability will be limited to 100% of the Price paid or payable.
9.3 MeditradeUK will have no Liability to the Customer for any:
9.3.1 loss of profit (whether direct, indirect or consequential);
9.3.2 loss of use, loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);
9.3.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
9.3.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);
9.3.5 loss of bargain (whether direct, indirect or consequential);
9.3.6 liability of the Customer to third parties (whether direct, indirect or consequential);
9.3.7 loss of use or value of any data or software (whether direct, indirect or consequential);
9.3.8 wasted management, operational or other time (whether direct, indirect or consequential); or
9.3.9 indirect or consequential loss,
subject always to Condition4.
9.4 Nothing in the Contract will operate to exclude or restrict any Liability of a party:
9.4.1 that cannot be excluded or restricted in the Contract in respect of death or personal injury resulting from negligence by operation of section 2(1) of the Unfair Contract Terms Act 1977;
9.4.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; or
9.4.3 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
9.5 Nothing in this Condition 9 will prevent or restrict the right of a party to seek injunctive relief or specific performance or other discretionary remedies of the court.
9.6 The exclusions from, and limitations of, liability set out in this Condition 9 will be considered severally. The invalidity or unenforceability of any one sub-clause or clause will not affect the validity or enforceability of any other sub-clause or clause and will be considered severable from each other.
9.7 Each of MeditradeUK’s employees, agents and sub-contractors will be entitled to enforce all the terms of this Condition 9 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract. Accordingly the financial limits on Liability set out in Condition 9 are the maximum liability of MeditradeUK, its employees, agents and sub-contractors in aggregate.
10. Intellectual Property Rights
Nothing in the Contract will operate to transfer to the Customer or to grant to the Customer any licence or other right to use any of MeditradeUK’s Intellectual Property Rights, save that the Customer may use the MeditradeUK’s Intellectual Property Rights in the Goods solely to the extent necessary to use the Goods for the purpose for which they were supplied
11. Customer Obligations
11.1 The Customer will:
11.1.1 provide MeditradeUK with all such information and assistance as MeditradeUK may require from time to time to perform its obligations or to exercise any of its rights under the Contract;
11.1.2 unless otherwise agreed in writing by MeditradeUK in advance, not re-package the Goods or remove or alter any trade marks, patent numbers, serial numbers or other identifying marks on the Goods or their packaging or add any other trade marks, patent numbers, serial numbers or other identifying marks to the Goods or their packaging;
11.1.3 not alter or modify the Goods in any way;
11.1.4 obtain such licences, permits, consents and authorisations as may be required for use of the Goods in accordance with Applicable Law; and
11.1.5 return packaging to MeditradeUK, as required by MeditradeUK.
11.2 The Customer will comply with MeditradeUK’s instructions in connection with any product recall initiated by MeditradeUK involving the Goods (or any of them).
11.3 Notwithstanding any other term of the Contract, MeditradeUK will not be in breach of the Contract to the extent its failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of:
11.3.1 any breach by the Customer of its obligations contained in the Contract;
11.3.2 MeditradeUK relying on any incomplete or inaccurate data provided by a third party; or
11.3.3 MeditradeUK complying with any instruction or request by the Customer or one of its employees.
12.1 If a party:
12.1.1 commits a material breach of the Contract which cannot be remedied; or
12.1.2 commits a material breach of the Contract which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied being given by the other party,
the other party may terminate the Contract by giving not less than 10 Business Days’ written notice to that effect to the party in breach.
12.2 A material breach can be remedied if the party in breach can comply with the relevant obligation in all respects other than as to time of performance unless time of performance of such obligation is of the essence.
12.3 Condition1 will not apply to any failure by the Customer to make any payment due to MeditradeUK under the Contract on or before the due date. Condition12.4 will apply instead to any such failure.
12.4 MeditradeUK may terminate the Contract by giving not less than 10 Business Days’ written notice to that effect to the Customer if the Customer fails to make any payment due to MeditradeUK under the Contract within 5 Business Days after the due date.
12.5 MeditradeUK may terminate the Contract immediately by giving written notice to that effect to the Customer if the Customer becomes Insolvent.
12.6 The Customer will notify MeditradeUK immediately upon becoming Insolvent.
12.7 Following expiry or termination of the Contract:
12.7.1 Conditions1, 5, 6, 7, 8, 9, 12.7, 12.8, 12.9, 12.10, 14, 16, 17 and 18 will continue in force, together with any other Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract; and
12.7.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
12.8 Within 30 days after the date of expiry or termination of the Contract the Recipient will, subject to the exception set out in Condition 9:
12.8.1 if requested to do so, return to the Discloser all of the Discloser’s Confidential Information (including all copies and extracts) in its possession or control;
12.8.2 if requested to do so, destroy or permanently erase (if technically feasible without incurring excessive expense and without undue effort) all documents and all records (in any media) created by it or on its behalf that use, concern or are based on any of the Discloser’s Confidential Information (“Records”); and
12.8.3 cease to use the Discloser’s Confidential Information.
12.9 The Recipient may retain any of the Discloser’s Confidential Information and/or Records which it has to keep to comply with any Applicable Law or which it is required to retain for insurance, accounting or taxation purposes. The provisions of Condition 14 will continue to apply to retained Confidential Information and Records, which may only be used for such purposes.
12.10 Each party will, upon request, confirm to the other party in writing that it has complied with Conditions 8 and 12.9.
13. Force Majeure
13.1 MeditradeUK will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract to the extent that and for so long as such failure or delay is due to a Force Majeure Event or to the effects of a Force Majeure Event.
13.2 MeditradeUK will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract to the extent that this is due to a Force Majeure Event affecting the Customer or the Customer’s failure to perform or delay in performing any of its obligations under any Contract.
13.3 Subject to Condition 4, the Customer will not be in breach of the Contract or otherwise liable to MeditradeUK for any failure to perform or delay in performing its obligations under the Contract to the extent that this is due to a Force Majeure Event affecting MeditradeUK.
13.4 The Customer will continue to pay MeditradeUK’s invoices in accordance with Condition 6 in respect of any Goods which MeditradeUK continues to supply notwithstanding the occurrence of the Force Majeure Event.
13.5 The relief from liability under this Condition 13 will apply for the whole of the period of time during which a Force Majeure Event affects MeditradeUK’s
13.6 If a Force Majeure Event which affects performance of any of MeditradeUK’s obligations under the Contract continues for a continuous period of more than 30 days, either party will be entitled to terminate this the Contract by giving not less than 10 Business Days’ written notice to that effect to the other party.
14.1 In these Conditions “Confidential Information” means, subject to Condition5:
14.1.1 any information (whether written, oral, in electronic form or in any other media) that is disclosed in connection with the Contract by or on behalf of a party (the “Discloser”) (or one of the Discloser’s Representatives) to the other party (the “Recipient”) or any of the Recipient’s Representatives whether before, on or after the date of the Contract and that relates (in whole or in part) to the Discloser or any of the Discloser’s Group Companies or its (or their) businesses;
14.1.2 the terms of or subject matter of the Contract or any discussions or documents in relation to it, and in respect of such information each party will be deemed to be a Recipient; and
14.1.3 any trade secret (as that term is defined in regulation 2 of the Trade Secrets (Enforcement, etc) Regulations 2018) where the Discloser or any of the Discloser’s Representatives is the trade secret holder,
but excluding information that is trivial or by its nature immaterial.
14.2 The Recipient will at all times, but subject to Conditions3 and 14.5:
14.2.1 keep the Confidential Information secret and will only disclose it in the manner and to the extent expressly permitted by this Condition 14;
14.2.2 use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under the Contract;
14.2.3 only make such copies, summaries, extracts, transcripts, notes, reports, analyses and recordings (in any form of media) that use, contain or are based on (or derived from) Confidential Information as are reasonably necessary to perform its obligations and exercise its rights under the Contract; and
14.2.4 keep the Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Recipient operates in relation to its own confidential information and will never exercise less than reasonable care.
14.3 The Recipient may disclose Confidential Information:
14.3.1 to those of the Recipient’s Representatives who need access to that Confidential Information in order for the Recipient’s obligations under the Contract to be performed and the Recipient’s rights under the Contract to be exercised. Prior to any such disclosure the Recipient must make that Representative aware of the fact that the Confidential Information is confidential and secret and the obligations of confidentiality contained in this Condition 14 and (unless that Representative is an employee, director or officer of the Recipient) the Recipient will procure that such Representative will enter into a confidentiality agreement with the Recipient on terms substantially equivalent to those contained in this Condition 14. The Recipient will procure that each of the Recipient’s Representatives will not do or omit to do anything which if done or omitted to be done by the Recipient would constitute a breach of this Condition 14. The Recipient will be liable for the acts and omissions of its Representatives in respect of the Discloser’s Confidential Information as if they were acts or omissions of the Recipient; and
14.3.2 to the extent required by law, by an order of a court of competent jurisdiction or by any securities exchange, listing authority, governmental or regulatory authority to which the Recipient is subject or to which it submits. Where reasonably practicable and lawful the Recipient will notify the Discloser in writing in advance of such disclosure, will consult with the Discloser as to the content, purpose and means of disclosure and will seek to make such disclosure subject to obligations of confidence consistent, so far as reasonably possible, with the terms of the Contract.
14.4 The Discloser, one of the Discloser’s Group Companies or its (or their) licensors own all right, title and interest in the Discloser’s Confidential Information and, save as is expressly provided by the Contract no right to use any Confidential Information or trade secrets is granted by the Discloser (or any of the Discloser’s Group Companies).
14.5 Subject to Condition6, the Recipient’s obligations under this Condition 14 will not extend to Confidential Information which:
14.5.1 the Discloser agrees in writing is not Confidential Information;
14.5.2 at the time of disclosure was in the public domain or subsequently enters into the public domain other than as the direct or indirect result of a breach of this Condition 14 by the Recipient or any of the Recipient’s Representatives;
14.5.3 the Recipient can prove to the reasonable satisfaction of the Discloser from written records or other substantive evidence:
184.108.40.206 has been received by the Recipient (or one of the Recipient’s Representatives) at any time from a third party who did not acquire it in confidence and who is free to make it available to the Recipient (or the relevant Representative); or
220.127.116.11 was independently developed by the Recipient (or one of the Recipient’s Representatives) without any breach of the Contract.
14.6 Condition 14.5.3 will not apply to the Confidential Information referred to in Condition 14.1.2.
14.7 The Recipient acknowledges and agrees that damages alone would not be an adequate remedy for breach of this Condition14 by the Recipient. Accordingly, the Discloser will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of this Condition 14 by the Recipient. In addition, the Recipient acknowledges that the Discloser or relevant Discloser Group Company will be entitled to all remedies of a trade secret holder under and referred to in the Trade Secrets (Enforcement, etc) Regulations 2018 where any Confidential Information of the Discloser or relevant Discloser Group Company is a trade secret under those Regulations.
15.1 MeditradeUK will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Contract.
15.2 The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract.
15.3 MeditradeUK will be entitled to sub-contract any of its obligations under the Contract.
15.4 The Customer will not be entitled to sub-contract any of its obligations under the Contract.
16.1 Subject to Condition 7, any notice given under or in connection with the Contract will be in the English language and:
16.1.1 sent to the relevant party’s address by pre-paid first class post, airmail post or mail delivery service providing proof of delivery; or
16.1.2 sent by e-mail to that party’s e-mail address
and, in the case of any notice to be given to MeditradeUK, marked for the attention of the specified representative of MeditradeUK. The address, e-mail address and representative for MeditradeUK are set out below and the address and e-mail address for the Customer are those detailed in the Order, and may be changed by the relevant party giving at least 10 Business Days’ notice in accordance with this Condition 16.
3rd Floor, 99 – 101 Regent Street
16.2 Any notice given in accordance with Condition 1 will be deemed to have been served:
16.2.1 if given by first class post or mail delivery service, in each case as set out in Condition 1.1, at 9.00 a.m. on the second Business Day after the date of posting;
16.2.2 if given by airmail post as set out in Condition 1.1, at 9.00 a.m. on the fifth Business Day after the date of posting; and
16.2.3 if given as set out in Condition 1.2, at the time of sending the e-mail,
provided that if a notice is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.
16.3 If a notice is given in accordance with Condition 1.2, a copy of the notice will be sent to the receiving party’s address (as set out in or changed in accordance with Condition 16.1) by pre-paid first class post, or airmail post or mail delivery service providing proof of delivery within 24 hours after sending the e-mail. The requirement set out in this Condition 16.3 is a condition to valid service of the relevant notice by e-mail.
16.4 For the purposes only of this Condition 16, references to time of day are to the time of day at the address of the recipient party as referred to in Condition 1 and references to Business Days are to normal working days in the territory in which such address is situated.
16.5 If any party comprises more than one person, service on one person in accordance with this Condition 16 will constitute good service on all of them.
16.6 To prove service of a notice it will be sufficient to prove that the provisions of Condition 1 were complied with.
16.7 This Condition 16 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
17.1 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
17.1.1 neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made to the first party or any other person) which is not expressly set out in the Contract;
17.1.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
17.1.3 nothing in this Condition 1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
17.2 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
17.3 If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect. This Condition 3 will not apply to a term which ceases to have effect under sections 233A, 233B or 372A of the Insolvency Act 1986. The Customer agrees that where any term ceases to have effect under any of those sections because it is subject to an insolvency procedure as referred to in any of those sections, if that insolvency procedure comes to an end without the Customer becoming subject to a further such insolvency procedure, such term will be deemed once again to have effect in accordance with its terms.
17.4 No variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
17.5 Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
17.6 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
17.7 MeditradeUK’s employees, agents and sub-contractors will be entitled to enforce Condition 9 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract.
17.8 The parties may vary or rescind the Contract without the consent of MeditradeUK’s employees, agents or sub-contractors.
17.9 Save as provided in Condition 7, the parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
17.10 MeditradeUK’s rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
18. Governing Law and Jurisdiction
18.1 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
18.2 Subject to Condition 3, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
18.3 Either party may seek interim injunctive relief or any other interim measure of protection in any court of competent jurisdiction.
18.4 Subject to Condition 18.3, each party waives any objection to, and agrees to submit to, the jurisdiction of the courts of England and Wales. Each party agrees that a judgment or order of any such court is binding upon it and may be enforced against it in the courts of any other jurisdiction.