Term and conditions of business GB
As at January 2013
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier 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 the Supplier.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out [in the Customer's purchase order form OR overleaf OR in the Customer's written acceptance of the Supplier's quotation OR in the Customer's purchase order form, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be].
Supplier: Physiotherm Limited (registered in England and Wales with company number 8225465).
The Conditions, exclusively, apply to all our quotations, deliveries, goodsand services. These also apply, as a master agreement, to all future business transactions with the Supplier even if, subsequently, attention is not drawn to them separately. Amendments to these Conditions are valid only if they have been confirmed in writing by the Supplier. Conflicting conditions of purchase are subordinate and only apply if they have been explicitly agreed. Oral agreements are only legally binding if they are confirmed in writing by the Supplier.
These conditions apply to the contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Note on consumer rights
These Conditions apply also to consumers subject to any mandatory statutory provisions that run counter to them.
1. Materialisation of the contract
1.1 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.
1.2 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
1.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
1.4 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
1.5 A quotation for the Goods given by the Supplier shall not constitute an offer.
The delivery time applies subject to unforeseen obstacles lying outside of the Supplier’s sphere of influence or control. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier is, in particular, not liable for delivery delays caused by force majeure and strikes or a failure by the Customer to provide adequate details to enable delivery to occur. Delivery times extend correspondingly to the extent that such occurrences prevent punctual fulfilment of the Contract. Claims for compensation in damages or for the Contract to be rescinded are therefore excluded in any case, unless there is evidence that the Supplier was grossly negligent. If the Customer has not taken the Goods over as agreed (delay in acceptance), then the Supplier has the right – after fruitless expiry of a final deadline that has been fixed by the Supplier – either to itself to store the goods (for which it may invoice a storage fee of 0.1% of the gross invoice amount per calendar day that has begun) or to have the Goods stored by an authorised commercial warehousing operation at the expense and risk of the Customer. The Supplier simultaneously has the right either to insist that the Contract be fulfilled or – after setting an appropriate final deadline of at least 2 weeks – to withdraw from the Contract, to exploit the Goods in some other way, and to demand compensation in damages from the Customer. In the case of contracts covering delivery on call off, the Goods must be accepted by, at the latest, 6 months from the time the Order was placed. The consequences set out above also apply in the case of delay in acceptance on the part of the Customer.
3. Passage of risk:
As per the Order, risk passes over to the Customer at the time the Goods are handed over to it by the carrier/forwarding agent or, in the case of it fetching them, at the handover location agreed with it. The Supplier normally despatches the goods carriage paid using a carrier/forwarding agent that it has commissioned.
We reserve the right to make technical changes, price changes and changes in design of the Goods in the interests of improving quality.
5. Reservation of ownership:
The Goods (irrespective of delivery) remain the property of the Supplier regardless of earlier passage of risk until such time as all claims arising from the supply, including any possible interest, charges and costs, have been settled. By way of security, theCustomer assigns to the Supplier – here and now – any claims on third parties to the extent that such arise as a result of its disposing of the Goods onwards until such time as all claims on it have been settled. In the eventuality of an attachment or of seizure of some other kind being threatened by a third party, then the latter must be informed of the reservation of ownership to the Supplier and a communication must immediately be sent to the Supplier. No pledging, collateral assignment, processing or conversion of the Goods prior to the passage of ownership to the Customer is permissible without the explicitly consent of the Supplier.
6. Complaints, guarantee:
6.1 The Customer must examine the delivery of Goods thoroughly immediately after receiving it. Complaints will only be considered if they are asserted in writing within 3 days of receiving the Goods and do not justify abatement or withholding of the purchase price. In the case of a complaint being acknowledged the Supplier is only obliged, at its option, either to rectify the Goods or make a fresh delivery of faultless goods. The Goods complained of must be kept on site for the Supplier to inspect them.
6.2 The Supplier warrants that on delivery, and for a period of 6 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
Provided That in respect of the functional capability of the infrared heating elements the warranty period will not apply and a lifetime guarantee is offered by the Supplier in respect of the infrared heating elements only but otherwise subject to these Conditions. Claims under this guarantee must be asserted in writing enclosing the original invoice to the Supplier at its registered office address (www.physiotherm.com).
(a) the Customer gives notice in writing to the Supplier during the warranty period promptly following discovery that some or all of the Goods do not comply with the warranty set out in clause 6.2;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.3;
(b) the defect arises because the Customer failed to follow the Supplier'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;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.5 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.2.
6.6The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.7These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.8 The supplier also assumes no liability for consequential damages arising from the product delivered breaking down.
7.1 All claims for compensation in damages involving cases of ordinary negligence are ruled out. This does not apply to personal injuries. Unless the matter involves a transaction with a consumer, the damaged person must prove the existence of ordinary and/or gross negligence. If it does not involve a consumer transaction, then the period of limitation for claims for compensation in damages is 3 years from the passage of risk. The provisions covering compensation in damages contained in these Conditions or otherwise agreed also apply when a claim for compensation in damages is asserted in addition to or in lieu of a claim under guarantee.
7.2Subject to these Conditions:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
8. Prices, terms of payment:
The prices apply at the agreed handover location as per the Order, exclusive of statutory Value Added Tax. Unless something else has been agreed in writing, the purchase price is due for payment on receipt of the invoice and without any deduction. If the delivery is made “carriage paid”, the Supplier also picks up the normal transport insurance costs but the the Customer must bear any additional special costs of packaging and freight/transport insurance, which become due for payment together with the specified purchase price.
If a later delivery date is agreed (a delivery date more than two months after the order date) then an advance payment becomes due for payment once the order has been placed. The size of the advance payment is dictated by the number of months elapsing between the order and the delivery:
Delivery date up to 4 months after order: 10% advance payment, residual payment after delivery/installation
Delivery date between 4 and 6 months after order: 30% advance payment, residual payment after delivery/installation
Delivery date between 6 and 12 months after order: 40% advance payment, residual payment after delivery/installation
Delivery date 12 months after order: 100% advance payment.
In the time leading up to such later delivery dates, the Supplier reserves the right to implement technical changes that have taken place between placing the order and receiving delivery. Irrespective of their delivery dates, an advance payment of at least 40% becomes due for payment after the placement of orders for Ergo-Integra cabins and cabins with special fittings.
The Customer’s payments are deemed to have been made only when they have reached the Supplier’s business account. In cases of arrears of payment, the Supplier has the right to seek, at its option, either reimbursement of the loss that has actually occurred or interest on arrears at the level laid down by law. Interest on arrears is charged from the date payment was due at 5% p.a. above the basic rate of interest on consumer transactions and at 8% p.a. above the basic rate on trade transactions.
9. Right to cancel and distance selling:
If the Customer is a consumer and has made his contractual declaration neither on premises used permanently by a business person for his business purposes nor at a stand used by such a person at a trade fair or other form of market, then he may withdraw from his application to contract or from the Contract itself. Such withdrawal may be declared up to the materialisation of the Contract or within one week thereafter. A consumer is not entitled to the right of withdrawal if he has himself initiated the link with the business person(s) or his/her/their representatives with the aim of entering into such a contract. The withdrawal must be in writing to be legally effective. Contracts entered into involving distance selling: The Customer (if a consumer) may withdraw from a contract that has been entered into in this sort of way or from a contractual declaration submitted at a distance within the following period: the time allowed for withdrawal is seven working days, not counting Saturday as a working day. It suffices if the withdrawal declaration is despatched within the time allowed. It begins in the case of contracts for goods to be delivered with the day they reach the Customer. Consequences of withdrawal: if the customer withdraws then he must send whatever he has received back or, at Supplier’s option, keep it ready for collection. The Customer must pay an appropriate charge for having used it, including some compensation for the reduction in its value ensuing from that use. He must bear the costs of delivering it back. Withdrawal is ruled out if the goods were produced to the Customer’s specifications or were clearly tailored to his personal needs.
10. a) Health:
We have the effects on health of our products and developments carefully examined in close co-operation with independent doctors. In connection with health questions and enquiries we endeavour to go into the individual needs for information of interested persons appropriately. We must, nonetheless, draw attention in this context to the fact that all items of information covering our products and their effects are of a general nature and under no circumstances replace individual medical advice, diagnosis or methods of treatment for your personal state of health or your situation. Please be absolutely sure to consult your doctor for medical advice and for the purpose of treating your personal state of health.
b) Data protection:
The data necessary to execute the contract is processed electronically and may, if needed, also be passed on to a company associated with the Supplier or working with it for the purposes of administration and customer care.
11. Collection procedure:
For each formal reminder that has become necessary because of delayed payment an arrears letter fee of at least GBP 20.00 exclusive of Value Added Tax is agreed. Formal warnings from our lawyers are charged in line with the legal profession’s tariff. The Customer is obliged to make known any change in its address as long as the contractual relationship is maintained and performance is still expected and it must itself bear all costs that arise as a result of disregarding this duty.
12. Right to transfer:
The Supplier has the right to transfer rights and duties arising from this Contract to some other company or third party. The Supplier becomes released from its duties 4 weeks after making known its successor in title unless the Customer has by then lodged an objection substantiated in writing.
13.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14. Governing law and jurisdiction.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.