1 The Definitions
1.1 Company: Fusion Implants Limited;
1.2 Customer: the purchaser of the Goods;
1.3 Goods: the products supplied by the Company to the Customer in accordance with these terms and conditions which include surgical implants, instrumentation , pins and screws;
1.4 Price: the price agreed on the Purchase Order for the Goods;
1.5 Purchase Order: details regarding the Goods purchased by the Customer;
1.6 Writing: all modes of communications in writing between the Company and Customer.
2 Order and Delivery
2.1 The Customer may place an order for the Goods by using the Purchase Order which the Company may decide to accept by way of an acknowledgment.The Customer may cancel the order within 14 days of receipt of the acknowledgment from the Company however the Customer shall be responsible for returning the Goods to the Company at their cost and shall ensure the Goods are returned in the same condition as when received.
2.2 The Company shall use its reasonable endeavours to meet the delivery date and times set out in the Purchase Order. If a delay to the delivery is anticipated the Company will advise the Customer at the time of the expected date and time of delivery.
2.3 Where a fast track delivery service is sought and agreed, the customer shall pay all costs for the requested service, and the Company shall not be responsible if the delivery is late provided that it makes the Goods available on time.
2.4 The Company shall not be liable for any direct or indirect loss, injury, damage or expense incurred from any delay in the delivery of the Goods, including but not limited to, any loss of profit or loss of custom.
3 Defective Goods
Where there is damage to the Goods or any missing or defective parts upon delivery of the Goods, the carrier’s delivery note must record in Writing the damage and defects in detail and be signed and dated by the Customer. All claims for damaged or defective Goods should be reported to the Company in Writing within 48 hours of delivery. Failure to comply may invalidate the Company’s right to claim against the carrier of the Goods and therefore also the Customers claim against the Company.
4 Returned Goods Policy
4.1 The Goods will only be accepted for return for credit for the following reasons:
a) To correct a material error regarding the delivery of the Goods or the Purchase Order;
b) In response to a product recall instigated by the Company; and
c) Where the Goods are alleged to be defective or damaged prior to delivery.
4.2 Goods returned on the grounds set out in 4.1 above must comply with the following:
a) They must be returned within 5 working days of receipt and will be appropriately packaged to ensure that no damage or further damage is caused during their return to the Company.
b) They must be in an “as received” condition and not marked or tampered with and be accompanied by a copy of the original invoice or delivery note where possible, together with the reason for their return in Writing.
4.3 In certain circumstances the Company may at its sole discretion accept the return of Goods not covered by clauses 4.2, however the return will only be accepted by prior agreement with the Company and must be accompanied by the information detailed in 4.2 (b) above and confirming the name of the person at the Company who authorised the return.
4.4 The Goods returned from stock will only be considered for credit if:
a) They have been stored in accordance with good practice for medical devices; and
b) They have been properly assessed and then accepted as returnable by the Company. Any assessment will take into account the nature of the Goods and their storage conditions. The Goods must be returned in their original packaging if possible.
4.5 Any bespoke made Goods will not be accepted for return or credit unless they are not fit for purpose or not of a satisfactory quality. In such cases, the Goods must be returned within 10 working days of receipt and in accordance with 4.2 (b) above.
5.1 Goods will be invoiced at the Price set out in the Purchase Order and the Price is exclusive of any value added tax or any import tax (if applicable) for which the Customer shall be liable to pay unless they are exempt.
5.2 The Customer shall pay the amount on the invoice within 30 days from the date of the invoice unless agreed otherwise by prior agreement in Writing. Time shall be of the essence. Payment can be made by Paypal or by BACS or whatever other means are acceptable to the Company at the time. Should the Customer fail to pay any amount on the due date, the Company reserves the right to:
a) Suspend any further delivery of Goods to the Customer; and
b) Charge the Customer interest at the rate of [2.5]% above the base rate of HSBC Bank plc per month until payment of the outstanding amount is made in full and in cleared funds. Notice of any claim including interest charges will be served in Writing on the Customer and the Company reserves its rights to bring any claim as it sees fit.
5.3 The Company may at its sole discretion permit the Customer to physically hold stock of the Goods at its premises and to draw down on the stock available as and when required and the Customer agrees to provide the company with a Purchase Order prior to making such a draw down on the stock. The Company will use its reasonable endeavours to replace stock at the request of the Customer, in order to facilitate future drawdown.
6 Force Majeure
The Company shall not be liable to the Customer or be deemed to be in breach by reason of any delay in performing, or any failure to perform, any of the Company obligations in relation to the supply of the Goods, if delay or failure to supply is due to any cause beyond the Companies control. The following shall be regarded as causes beyond the Companies control (but is not exhaustive):
a) An act of God, explosion, flood, tempest, fire or accident;
b) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or third parties);
c) War or threat of war, sabotage, insurrection, civil disturbance or requisition;
d) Import or export regulations or embargos:
e) Difficulties in obtaining raw materials, labour, fuel, parts or machinery; and
f) Power failure or breakdown in machinery.
7 Warranty and Liability
7.1 The Company warrants that the Goods will be of a satisfactory quality and generally fit for purpose but otherwise all other warranties are excluded to the fullest extent permitted by law.
7.2 The Customer is solely responsible for determining the actual suitability of the Goods for the purposes for which the Customer intends to use them and the Company’s liability for any direct loss or damage suffered by the Customer specifically arising from any defects in the Goods or their supply is limited to the actual price of the Goods paid in respect of or in relation to which loss or damages is claimed. The Company shall not be responsible for any liability for any indirect or consequential loss or damage including but limited to loss of profits arising from the supply of the Goods and all such loss is hereby fully excluded.
7.3 The Customer may request a bespoke design in respect of the Goods and agrees that they will be liable for any faults in the design that are based on their requirements and Company’s liability shall be in respect of the manufacturing process only.
8 Title and Risk
Unless otherwise agreed in Writing between the parties prior to delivery, title in the Goods shall not be transferred to the Customer until the full Price is paid to the Company in cleared funds. The risk of loss or damage to the Goods shall pass to the Customer on the date that the Goods are delivered and the Customer agrees to store the Goods in a safe place and ensure that there is adequate insurance in place to cover any loss or damage to the Goods whilst in the Customer’s possession and/or control.
9.1 Without prejudice to its rights the Company shall be entitled to cancel or suspend the supply of any Goods to the Customer without any liability to the Customer or any third party in the event that any of the following occurs or is deemed to be likely to occur in the reasonable opinion of the Company:
a) The Customer makes any voluntary arrangement with its creditors or
b) becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
c) An encumbrance takes possession, or a receiver is appointed, over any of the property or assets of the Customer;
d) The Customer ceases, or threatens to cease, to carry on business; or
e) There is a fundamental and material change of ownership in the Customer.
9.2 If the Goods have been delivered but not paid for, the Price shall become immediately payable notwithstanding any previous agreement or arrangement to the contrary and title to the Goods shall remain with the Company until the Price is received.
9.3 The Customer agrees to allow the Company access to its premises to retrieve the Goods in the event of any of the circumstances outlined in 9.1 above and until such time shall keep the Goods separate from all other goods and products and shall not mix, tamper with or use the Goods in any way whatsoever.
The Customer agrees to indemnify the Company and keep it indemnified against all loss, damage, costs, and professional and other expenses of any nature whatsoever incurred or suffered by the Company in respect of any breach of any legislation relating to use of the Goods or as a result of any breach of these terms and conditions by the Customer including but not limited to any breach of clause 9.3 above.
Any variation to these terms and conditions must be confirmed in Writing and signed off by a Director of the Company and the Customer.
12 Entire Agreement
These terms and conditions govern the relationship between the Company and the Customer in respect of the supply of the Goods and all other representations and prior agreements are hereby fully excluded.
13 Third Party Rights
All third party rights are hereby fully excluded and only the Customer and the Company shall retain such rights. The Company may however assign its rights to a successor or sister company or distributor upon providing the Customer with Notice in Writing.
14 Dispute Resolution
14.1 Should any dispute arise between the Company and the Customer in relation to supply of the Goods or these terms and conditions, then the parties submit to following by way of resolving any such dispute:
(a) The party making a claim shall set out their claim in Writing and accord the other party 14 days to deal with the claim in Writing and if the party making the claim remains dissatisfied with the outcome then they shall be at liberty to elect for mediation or arbitration at their discretion as a mechanism to resolve the dispute;
(b) At that point the parties agree to endeavour to agree a Mediator or Arbitrator within 7 days to deal with the claim and if an appointment cannot be agreed between them then the appointment shall be referred to the President of the Liverpool Law Society who shall make the appointment (whether for mediation or arbitration) on their behalf;
(c) The costs incurred shall be borne equally by the parties unless an award or judgment is given in favour of one party subsequent to any appointment of an Arbitrator.
These terms and conditions are governed by English Law and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales.