MD Dental Services – Terms and Conditions for the Sale of Goods
NB The customer’s attention is drawn in particular to the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:Business Day: a day (other than a Saturday, Sunday or public holiday)
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
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.
Force Majeure Event: has the meaning given in clause 10.
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 Prescription, overleaf, or by other means, as the case may be.
Prescription: the Supplier’s purchase order form overleaf.
Specification: any specification for the Goods, including any related plans and drawings, provided by the Customer, by means of the Prescription or any other means.
Supplier: MD Dental Services.
Ultimate Recipient: the individual/patient for whom the Goods are to be purchased by the Customer.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
- 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 trade, custom, practice or course of dealing.
2.2 The Order (whether by Prescription or other means) 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 and any applicable Specification are complete and accurate.
2.3 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.
2.4 The suitability of the Goods for the Ultimate Recipient is the sole responsibility of the Customer.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s 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.
3.1 The Goods are described in the Specification and are generally known within the dental profession/industry.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
4.1 The Supplier shall ensure that each of the Goods is accompanied by an invoice and invoice number which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and special storage instructions (if any); and
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.4 The Supplier will use reasonable endeavours to deliver the products within a reasonable time. However, time of delivery is not of the essence. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier 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. The Supplier 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 the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.1 The Supplier warrants that on delivery, and for a period of 3 months from the date of delivery (warranty period),] the Goods shall:
(a) Conform in all material respects with their description and any applicable Specification;
(b) Be free from material defects in design, material and workmanship;
(c) Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
(d) Comply with Annex I of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices; and (e) be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
(a) The Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some of the Goods do not comply with the warranty set out in clause 5.1;
(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.
5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) The Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(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; or
(e) The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
5.4 Except as provided in this clause 5, the Supplier 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 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law 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 the Supplier.
- TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) The Goods; and
(b) Any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) Hold the Goods on a fiduciary basis as the Supplier’s Bailee;
(b) Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) Not enter into any contract (conditional or otherwise) for the resale of the Goods;
(f) Notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(g) Give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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 calculated in accordance with the Supplier’s published price list in force as at the date of delivery, taking into account the work required to alter the Goods to fit the Specification.
7.2 The price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods within the United Kingdom. The costs and charges of transport of the Goods outside of the United Kingdom shall be invoiced to the Customer.
7.3 Each of the Goods will be supplied with an individual invoice and invoice number. At the end of each month, the Supplier will provide the Customer with a statement showing all of the invoices issued during that month (Statement).
7.4 The Customer shall pay the invoices set out in each Statement in full and in cleared funds within 21 days of the date of the Statement. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- CUSTOMER’S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) an application or an order is made for the appointment of an administrator or a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (Being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrance of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within  days;
(f) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive); and
(g) (Being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
- LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) Fraud or fraudulent misrepresentation;
(c) Breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) Defective products under the Consumer Protection Act 1987;
(e) Breach of the provisions of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices as apply to the Goods; or
(f) Any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
(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;
(b) the Supplier shall under no circumstances whatever be liable in respect of any claim that the Goods are not suitable for any Ultimate Recipient on the onward sale of the Goods by the Customer, and the suitability of the Goods for each Ultimate Recipient remains solely the responsibility of the customer; and
(c) 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 the price of the Goods.
- FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Assignment and subcontracting
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, at [9.00 am] on the [second] Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax