IMS EURO LIMITED – TERMS AND CONDITIONS OF SALE
INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are normally open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.5.
Contract: the contract between IMS Euro and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from IMS Euro.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
IMS Euro: IMS Euro Limited, registered in England and Wales with company number 04247118 and whose registered office address is at Europa Business Park, Bird Hall Lane, Cheadle Heath, Stockport, United Kingdom, SK3 0XA.
Order: the Customer's order for the Goods, as set out in IMS Euro’s order form, the Customer’s purchase order form, the Customer’s written acceptance of IMS Euro’s quotation or in any other form, as the case may be.
Website: IMS Euro’s website at www.imseuro.co.uk.
BASIS OF CONTRACT
2.1 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 law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when IMS Euro issues a written acceptance of the Order by email, at which point the Contract shall come into existence. IMS Euro are under no obligation to accept an Order that is submitted by the Customer and is not required to provide a reason where it rejects an Order submitted to it.
2.4 Where IMS Euro receives an Order for Goods that are not available, IMS Euro shall contact the Customer prior to accepting the Order and shall, where possible, agree alternative products to include in the Order. Where alternative products are not available, subject to the Customer requesting otherwise, IMS Euro may accept the Order on the basis that the Goods will be delivered to the Customer when available for delivery.
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 is inconsistent with these Conditions.
2.6 Any samples, drawings, descriptive matter or advertising produced by IMS Euro and any descriptions or illustrations contained in IMS Euro's catalogues or brochures or on IMS Euro’s website 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 IMS Euro shall not constitute an offer. A quotation shall only be valid for a period of 5 Business Days from its date of issue unless stated otherwise by IMS Euro.
GOODS
3.1 The Goods are described in IMS Euro's catalogue or on IMS Euro’s Website. IMS Euro reserves the right to amend any specification or description of the Goods if required by any applicable statutory or regulatory requirement, and IMS Euro shall notify the Customer in any such event.
DELIVERY
4.1 IMS Euro shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the purchase order number (where applicable), the type and quantity of the Goods (including the item code of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 IMS Euro shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after IMS Euro notifies the Customer that the Goods are ready. Where the Delivery Location is in mainland United Kingdom (which for the avoidance of doubt excludes the Highlands and Islands of the United Kingdom) and IMS Euro accepts an Order prior to 5pm, IMS Euro will use its reasonable endeavours to dispatch the Goods on the same day for delivery on the next Business Day (save that where the Customer requests the 48-hour delivery service with a complimentary gift). Where the delivery contains dangerous Goods (as determined by IMS Euro), such Goods may be dispatched separately to other Goods being delivered and may incur a delay in delivery.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates or timescales quoted for delivery or set out in this clause 4 or elsewhere are approximate only, and the time of delivery is not of the essence. IMS Euro 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 IMS Euro with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If IMS Euro 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. IMS Euro 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 IMS Euro with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods on the first attempt to deliver after notifying the Customer that the Goods are ready, IMS Euro will make one further attempt to deliver the Goods to the Customer at a time notified to the Customer in advance. Should the Customer fail to accept delivery on this further attempt to deliver, then, except where such failure or delay is caused by a Force Majeure Event or IMS Euro's failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at the time that IMS Euro made the further attempt to deliver the Goods; and
4.6.2 IMS Euro shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance and failed delivery costs).
4.7 If ten Business Days after the day on which IMS Euro made its further attempt to deliver the Goods the Customer has not accepted actual delivery of them, IMS Euro 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 IMS Euro 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, IMS Euro shall make a pro rata adjustment to the invoice for the Goods or refund such pro rata adjustment within 14 days.
4.9 IMS Euro may deliver the Goods 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.
4.10 The Customer may return non-faulty Goods within 5 days of the date of delivery, subject to the following:
4.10.1 the Customer notifies IMS Euro as soon as possible (and in any event within 2 days of the date of delivery) of its intention to return some or all of the Goods and provides IMS Euro with any information required in relation to the Goods that are to be returned;
4.10.2 the Customer will be responsible for paying any costs of a return, and will remain responsible for the Goods until IMS Euro has notified receipt of the Goods to the Customer;
4.10.3 any return of Goods may (at IMS Euro’s option) be subject to a restocking and administration fee of up to 10% of the cost of the Goods being returned, such fee to be deducted by IMS Euro from any refund to be made to the Customer;
4.10.4 any returned Goods must be returned in their original packaging, in a saleable condition and accompanied by a returns form which can be obtained from IMS Euro; and
4.10.5 Goods not accompanied by a returns form will not be accepted.
QUALITY
5.1 IMS Euro warrants that on delivery the Goods shall:
5.1.1 conform in all material respects with their description; and
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose held out by IMS Euro.
5.2 Upon receipt of delivery of the Goods, the Customer shall without delay inspect the Goods and immediately report in writing if any of the Goods do not comply with the warranty set out at clause 5.1. Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to IMS Euro within 3 Business Days that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 IMS Euro is given a reasonable opportunity of examining such Goods; and
5.2.3 if asked to do so by IMS Euro, the Customer either (at IMS Euro’s option) returns such Goods to IMS Euro's place of business at IMS Euro’s cost (calculated in accordance with standard Royal Mail postage costs) or makes the Goods available for collection by IMS Euro; such return or collection to be received or taken by IMS Euro within 2 weeks of the date of delivery of the Goods to the Customer.
5.2.4 IMS Euro shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. Any Goods returned under this clause should be returned in their original packaging accompanied by a returns form which can be obtained from IMS Euro. Goods not accompanied by a returns form will not be accepted.
5.3 IMS Euro shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow IMS Euro'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;
5.3.3 the Customer alters or repairs such Goods without the written consent of IMS Euro;
5.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
5.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
5.3.6 the Goods return is not accompanied by a returns form.
5.4 Except as provided in this clause 5, IMS Euro shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by IMS Euro.
TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery. Title of all and any goods supplied by IMS Euro shall remain vested with IMS Euro and shall not pass to the Customer until all monies owing to IMS Euro by the Customer, together with all collection, repossession, and / or legal costs incurred, have been paid in full.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 IMS Euro receives payment in full (in cash or cleared funds) for the Goods and any other goods that IMS Euro 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
6.2.2 the Customer resells the Goods, in which case the Goods shall pass to the Customer at the time specified in clause 6.5.
6.3 Notwithstanding clause 6.2, IMS Euro may by notice to the Customer pass title to the Goods to the Customer at any time prior to the title passing to the Customer in accordance with clause 6.2.
6.4 Until title to the Goods has passed to the Customer, the Customer shall:
6.4.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as IMS Euro's property;
6.4.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.4.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.4.4 notify IMS Euro immediately if it becomes subject to any of the events listed in clause 9.1.2 and clause 9.1.3; and
6.4.5 give IMS Euro such information as IMS Euro may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.5 Subject to clause 6.6, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before IMS Euro receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.5.1 it does so as principal and not as IMS Euro’s agent; and
6.5.2 title to the Goods shall pass from IMS Euro to the Customer immediately before the time at which resale by the Customer occurs.
6.6 At any time before title to the Goods passes to the Customer, IMS Euro may:
6.6.1 by notice in writing, terminate the Customer's right under clause 6.5 to resell the Goods or use them in the ordinary course of its business; and
6.6.2 require the Customer to deliver up all Goods in its possession that have not been already used in the Customer’s ordinary course of business and 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.
PRICE AND PAYMENT
7.1 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 IMS Euro's published price list in force as at the date of delivery (as published on IMS Euro’s Website). Any prices for Goods published or set out elsewhere (such as within IMS Euro’s brochure or marketing materials) are correct at the time of printing only.
7.2 IMS Euro may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond IMS Euro's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give IMS Euro adequate or accurate information or instructions.
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to IMS Euro at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer. IMS Euro’s current delivery and return charges are as set out on IMS Euro’s Website. IMS Euro may at its option amend its delivery and return charges at any time.
7.4 IMS Euro may increase the price of its Goods at any time without notice and the Customer should refer to IMS Euro’s Website for up-to-date prices of Goods. Notwithstanding the foregoing, IMS Euro will use its reasonable endeavours to notify a Customer of price increases to the Goods that may in its opinion apply to a Customer.
7.5 Where IMS Euro agrees (acting in its absolute discretion) in advance of dispatching the Goods that the Customer will make payment for Goods on completion of delivery, IMS Euro will invoice the Customer for the Goods on or at any time after completion of delivery. The Customer shall pay each invoice submitted by IMS Euro within 30 days of the date of the invoice (or in accordance with any credit terms agreed by IMS Euro and confirmed in writing to the Customer) and in full and in cleared funds to a bank account nominated in writing by IMS Euro. Where IMS Euro agrees payment terms with the Customer under this clause 7.5, IMS Euro will not be obliged to agree to the same payment terms for future orders made by the Customer and may amend its payment terms at any time acting in its sole discretion.
7.6 Where clause 7.5 does not apply, the Customer shall make payment for Goods in advance of their dispatch. IMS Euro has the right to delay the dispatch of Goods until payment has been made by the Customer and in full and cleared funds.
7.7 Time for payment shall be of the essence of the Contract.
7.8 If the Customer fails to make a payment due to IMS Euro under the Contract by the due date, then, without limiting IMS Euro's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.8 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.9 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).
7.10 Notwithstanding any agreement or statement to the contrary, any discounts or rebates made available by IMS Euro in relation to its Goods shall not apply to any capital equipment, surgical instruments or other non-consumable items (as determined by IMS Euro acting in its sole discretion).
LIMITATION OF LIABILITY
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.2.4 defective products under the Consumer Protection Act 1987.
8.3 Subject to clause 8.2, IMS Euro's total liability to the Customer in respect of all claims and 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 the total price paid for the Goods under the Contract.
8.4 Subject to clause 8.2, the following types of loss are wholly excluded:
8.4.1 any loss (whether direct or indirect) of profits, sales or business, revenue, anticipated savings, reputation or goodwill;
8.4.2 any special, indirect or consequential loss, costs, damages, charges or expenses, however arising under the Contract; and
8.4.3 any business interruption, loss of business, contracts and/or opportunity.
8.5 This clause 8 shall survive termination of the Contract.
TERMINATION
9.1 Without limiting its other rights or remedies, IMS Euro may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 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 14 days of that party being notified in writing to do so;
9.1.2 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), obtaining a moratorium, 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; and/or
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business or the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, IMS Euro may suspend provision of the Goods under the Contract or any other contract between the Customer and IMS Euro if the Customer becomes subject to any of the events listed in clause 9.1.2 and clause 9.1.3, or IMS Euro 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 this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, IMS Euro 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.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to IMS Euro all of IMS Euro's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, IMS Euro shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination of the Contract, however arising, 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 which existed at or before the date of termination or expiry. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
CONSUMER CUSTOMERS – THIS CLAUSE ONLY APPLIES WHERE THE CUSTOMER IS PURCHASING GOODS AS A CONSUMER
10.1 If the Customer is entering into a Contract with IMS Euro Limited as a consumer as defined under the Consumer Rights Act 2015 (being an individual who is entering into a Contract not in the course of a business, trade or profession) then this clause will apply and will take priority over any other conflicting clause contained within these Conditions.
10.2 Nothing in these Conditions shall limit or affect, or be construed to limit or affect, a consumer’s statutory rights. In particular (but without limitation) clause 5 and clause 8 shall not apply.
Cancellation Rights for Consumer Customers
10.3 Where the Customer is a consumer and the Contract is entered into as a distance contract (that is where the parties have not negotiated any element of the Contract face to face), then the Customer will have a right to cancel the Contract during the period of 14 days after the day on which the Goods are delivered to the Customer (or if delivered in instalments, the 14 days after the day on which the last instalment of Goods was delivered to the Customer) (the “Cooling Off Period”).
10.4 In order to cancel using the right set out under clause 10.3, the Customer must notify IMS Euro of this within the Cooling Off Period. The Customer should contact [email protected] with the details of the cancellation. Alternatively, the Customer can visit the 'contact us' page on the website (www.imseuro.co.uk) and fill in the form accordingly. If the Customer cancels the Contract during the Cooling Off Period IMS Euro will refund all monies paid by the Customer under the Contract including delivery costs, however IMS Euro may make deductions from the refund in accordance with clause 10.6. IMS Euro will make any refund due as soon as possible (and in any event within 14 days of the Customer notifying IMS Euro of cancellation under this clause 10.4).
10.5 The Customer is responsible for returning the Goods to IMS Euro and for any costs involved in the return of the Goods (including, where applicable, any collection costs which will be based on IMS Euro’s standard delivery charges). The Goods must be sent for return by the Customer within 14 days of the notice of cancellation under clause 10.4.
10.6 IMS Euro will not provide a refund for any Goods that are sealed for health protection or hygiene purposes, once these have been unsealed after the Customer has received them. IMS Euro may also make deductions from any refund to the Customer to reflect any reduction in value of the Goods that has been caused by the Customer handling the Goods in a way which would not be permitted in a shop. The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method provided by IMS Euro.
GENERAL
11.1 Force Majeure. 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. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 12 weeks the party not affected may terminate the Contract by giving 7 days' written notice to the affected party. This clause shall not apply to the Customer’s obligations to make payment of the Goods under clause 7.
11.2 Confidentiality. The parties agree that the terms of the Contract and any written or oral information exchanged between the parties relating to or concerning the business, affairs, customers, clients or suppliers of the other party is confidential information. Neither party shall at any time disclose to any person such confidential information without the prior consent of the other party unless disclosure is required by law, a court of competent jurisdiction or any governmental or regulatory authority or disclosure is required on a confidential basis to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract.
11.3 Assignment and other dealings. IMS Euro may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 IMS Euro.
11.4 Entire agreement. 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.
11.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 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.
11.7 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 of the Contract is deemed deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and addressed to its registered office address (or such other address that may be nominated by a party from time to time) and shall be deemed to have been delivered on delivery if by hand or within 48 hours of posting if sent by prepaid first class registered post. A notice given under the Contract is not valid if sent by email.
11.9 Third Party Rights. All third party rights are excluded and no third parties shall have any rights to enforce the Contract.
11.10 Governing Law and Jurisdiction. The Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts in relation to any matter or dispute arising out of or in connection with it (whether of a contractual or tortious nature or otherwise).