TERMS AND CONDITIONS – Acuphon Ltd April 2023

TERMS AND CONDITIONS – Acuphon Ltd  April 2023

1. INTERPRETATION: 

a. In these Conditions:

• "Buyer” means the person or company that accepts a quotation of the Seller for the sale of goods or services, or whose order for the goods or services is accepted by the Seller.
• “Goods” mean the products or services (including any installment of the products or any parts for them) which the Seller is to supply in accordance with these Conditions.
• "Seller," hereinafter referred to as the 'Seller,' means Acuphon Ltd (registered in England under number 13041988) whose registered office is located at Orchard House, Fuller Street, Ruddington, Nottinghamshire, NG11 6HU.
• “Conditions” mean the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and a Director of the Seller.
• “Contract” means the agreement for the purchase and sale of the Goods or Services.
• "Writing” includes telex, cable, facsimile transmission, email, and comparable means of communication.

b. Any reference in these Conditions to any provision of a statute shall be interpreted to mean that provision as amended, reenacted, or extended at the relevant time.

c. The headings in these Conditions are for convenience only and shall not affect their interpretation.

d. In the event of any conflict between these Conditions and any special terms and conditions agreed in writing between the Buyer and a Director of the Seller, the special terms and conditions shall prevail.

2. BASIS OF THE SALE: 

a. These Conditions shall apply to all contracts for the sale of Goods or Services by the Seller to the Buyer and shall prevail over any other documentation or communication from the Buyer.

b. No variation to these Conditions shall be binding unless agreed in writing between the Buyer and a Director of the Seller.

c. The Buyer acknowledges that it has not relied on any representations made by the Seller or its employees or agents, and waives any claim for breach of such representations.

d. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application, or use of the Goods or Services is followed or acted upon entirely at the Buyer’s own risk.

e. Any typographical, clerical, or other error or omission in any sales literature, quotation, acceptance of order, invoice, or other document issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. ORDERS AND SPECIFICATIONS: 

a. The Buyer’s order shall be deemed to be accepted by the Seller when the Seller confirms it in writing.

b. The quantity, quality, and description of the Goods shall be as set out in the Seller’s quotation (also known as estimate) and/ or invoice or the Seller’s written order confirmation, whichever is later.

c. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs, and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark, or other industrial or intellectual property rights of any other person that result from the Seller’s use of the Buyer’s specification.

d. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

e. Once accepted by the Seller, the Buyer’s order may only be canceled with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss, including loss of profit, costs, damages, charges, and expenses incurred by the Seller as a result of cancellation.

4. PRICE OF THE GOODS: 

a. The price of the Goods shall be as stated in the Seller’s quotation or order confirmation.

b. The Seller reserves the right to adjust the price of the Goods by giving written notice to the Buyer prior to delivery to reflect any increase in costs incurred by the Seller due to any factors beyond its control, such as foreign exchange fluctuations, changes in laws or regulations, or increases in the costs of materials or labour. Any request by the Buyer to change the delivery date, quantity, or specification of the Goods may also result in an adjustment to the price. The price is exclusive of any applicable taxes, including but not limited to value-added tax, which the Buyer shall pay in addition to the price.

c. In the event of an incorrect price being advertised on the Seller's website or any other sales literature, the Seller reserves the right to cancel any orders placed at the incorrect price and offer the Buyer the option to purchase the Goods at the correct price.

5. DELIVERY

a. Our normal lead time for stock items is stated on the relevant documentation and is expressed in working days from receipt of payment. Lead times may vary, and the applicable lead time will be confirmed by the Seller at the time of order. If a Saturday delivery is requested by the Buyer, additional charges will apply, and the Seller will advise the Buyer of such charges prior to acceptance of the order. In all cases, the Seller will use reasonable endeavours to keep the Buyer informed of delivery schedules.

b. Delivery will only be made within the United Kingdom, unless otherwise agreed in writing by the Seller.

c. Any dates or times quoted for delivery of the Goods are approximate only and are provided as estimates. Time for delivery shall not be of the essence. The Seller shall not be liable for any delay in delivery of the Goods, however caused. The Goods may be delivered in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

d. The Seller strongly recommends that the Buyer does not book fitters, tradesmen or third-party contractors until the Goods have been delivered and checked by the Buyer. The Seller shall not be liable for any third-party costs, charges, losses or expenses incurred as a result of delayed delivery, non-delivery, part delivery, or the Buyer’s failure to inspect the Goods upon delivery.

e. The Seller does not process orders or deliver on UK Bank Holidays or weekends, save that Saturday delivery may be available by prior agreement and subject to additional charge.

f. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract. Any failure by the Seller to deliver one or more instalments in accordance with these Conditions, or any claim by the Buyer in respect of one or more instalments, shall not entitle the Buyer to treat the Contract as repudiated as a whole.

g. To the fullest extent permitted by law, if the Seller is found liable under these Terms and Conditions or under statute in respect of non-delivery of the Goods, such liability shall be limited to the excess (if any) of the cost to the Buyer, in the cheapest available market, of similar goods to replace those not delivered over the price of the Goods.

h. If the Buyer fails to take delivery of the Goods, or fails to give the Seller adequate delivery instructions at the time stated for delivery, then without prejudice to any other right or remedy available to the Seller, the Seller may, at its discretion:

i. store the Goods until actual delivery and charge the Buyer for all reasonable costs and expenses (including storage, insurance and handling); and/or

ii. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for any excess over the Contract price, or charge the Buyer for any shortfall below the Contract price; and/or

iii. charge the Buyer for any carriage, aborted delivery, re-delivery and associated costs incurred.

i. If the Buyer changes delivery details after the delivery has been booked or confirmed, the Seller may charge the Buyer an administration fee of £25.00 (plus VAT, if applicable), in addition to any carrier or re-delivery charges incurred.

j. Deliveries are priced and arranged on the basis of standard delivery vehicles and on the assumption that the Buyer has suitable means to offload the Goods, unless otherwise agreed in writing. It is the Buyer’s responsibility to ensure that:

• the delivery location is suitable and safely accessible for the delivery vehicle,
• there are appropriate means and personnel available to receive and offload the Goods (unless mechanical offload has been agreed), and
• any site-specific restrictions are disclosed to the Seller in advance.

The Seller shall not be liable for failed deliveries, delays, additional costs, or property damage arising from inadequate access, unsuitable ground conditions, or insufficient offloading arrangements at the delivery address.

k. All delivery dates and times are estimates only and are subject to stock availability, traffic conditions, carrier scheduling, weather, port congestion, customs/HMRC clearance (where applicable), and other factors outside the Seller’s reasonable control.

l. Unless otherwise stated in writing, deliveries are arranged using standard vehicles, which for larger consignments may include standard articulated vehicles. If the Buyer requires any non-standard vehicle or service, including (without limitation):

• a smaller vehicle due to access restrictions,
• tail lift delivery,
• timed delivery,
• mechanical offload,
• Moffett offload, or
• HIAB offload,

this must be disclosed and agreed with the Seller as early as possible before dispatch. Such requirements may affect lead times and will incur additional charges, which will be advised where reasonably practicable in advance.

m. Any special delivery or access requirements must be notified to the Seller at the earliest opportunity. Failure to disclose such requirements may result in delay, failed delivery, aborted delivery charges, re-delivery charges, and/or other additional costs, all of which shall be payable by the Buyer.

n. Delivery access is the Buyer’s responsibility. Where Goods are delivered on a large multi-tonne vehicle and offloaded by the driver using a pump truck, deliveries cannot be made over unsuitable surfaces such as gravel, loose stone, mud or similarly uneven/soft ground. In such circumstances, the driver may leave the Goods at the nearest safe hard-surfaced area. If the Buyer has a gravel driveway or similar surface, attendance may be required at the time of delivery to receive the Goods at an alternative safe location.

o. The Buyer must notify the Seller in advance of any delivery restrictions or site constraints, including (without limitation) narrow lanes, width/height restrictions, overhanging trees, weight limits, restricted delivery hours, difficult access, or any other factors likely to affect delivery. If such restrictions are not disclosed and delivery fails or is delayed, the Buyer shall be responsible for any resulting charges.

p. Smaller or specialist vehicles may be arranged as a special requirement, subject to availability. The Buyer acknowledges that such arrangements may cause delay due to limited vehicle availability and may incur additional charges.

q. If the Goods arrive damaged, the Buyer must:

• inspect the Goods on delivery where reasonably possible,
• note any visible damage or shortages on the delivery documentation at the time of delivery, and
• notify the Seller in writing within 24 hours of delivery.

Failure to do so may prejudice or invalidate any claim against the carrier and/or the Seller in respect of damage or shortage.

r. The Seller may make partial deliveries. In the event of a partial delivery, the Seller will use reasonable endeavours to inform the Buyer of the remaining items and their estimated delivery date. Unless otherwise agreed in writing, no additional delivery charge will be made for the outstanding balance where the shortfall is due to the Seller’s stock or logistics arrangements.

s. The Seller may use reputable third-party carriers and hauliers to deliver the Goods. The Seller shall not be liable for delays or issues caused by third-party carriers, save to the extent arising from the Seller’s negligence.

t. The Seller shall not be liable for any delay or failure in delivery caused by events outside its reasonable control, including (without limitation) acts of God, flood, fire, severe weather, war, terrorism, civil unrest, industrial action, port delays, carrier disruption, pandemic, epidemic, government action, or national or international emergency. In such circumstances, the Seller will use reasonable endeavours to agree a revised delivery date with the Buyer.

u. Acuphon Ltd may use third-party hauliers and their associated tracking systems for the delivery of larger items. The Buyer may receive SMS messages to the contact number provided, including dispatch notifications and estimated time of arrival updates. If the Buyer is in any doubt as to the authenticity of any such message, the Buyer should contact the Seller immediately and quote the relevant order number.

6. DAMAGES, OUR ERROR, SHORTAGES, RETURNS OR NON DELIVERY: 

a. Damage or Short Delivery - It is essential that any damage and/or shortages be noted on the carrier's delivery sheet immediately upon receipt of goods. Furthermore, notice in writing must be given to the Seller within 48 hours of receipt of goods to enable us to resolve the issue in a timely manner.

b. Non Delivery - In the event of non-delivery, claims must be made in writing to the Seller within 48 hours of the date of dispatch as shown on the invoice. This will enable us to investigate the matter and take appropriate action.

c. Our Error or Damaged Goods: If you receive damaged goods or if we have made an error, we request that you notify us within 48 hours of receipt of goods, to become process of returning the item(s). Please contact Acuphon Ltd on +44 (0)1904 900 194  or email support@acuphon.co.uk to arrange the return. For damaged goods on delivery or errors made by us, Acuphon Ltd will cover the cost of the return. Upon receipt of the returned goods, we will inspect them and issue a refund or replacement, whichever is appropriate. Please note that unauthorised returns will not be accepted.

Returns & ORDER cancellation Policy 

(a) We will accept returns on non-customised products or non-made to order goods, providing the customer returns them to us in an unused, undamaged and unopened condition (if within 14 days of receiving the goods). The customer is responsible for the product's return cost to us which equates to the original delivery costs and plus a 25 % restocking and handling fee (25% of product value). Customers must provide a copy invoice from their original sale. We are also unable to accept returns for items such as bonds or adhesives, as they are classed as perishable items.

For the return we will require: 

• Reason for return:
• Invoice ID:
• Image or attachment of the original Invoice:
• Image of the product(s):
• Image of both sides
• Items you wish to return (With quantities):
• Collection address of the goods:

Please note: You must notify us that you wish to return undamaged, unwanted or over-ordered goods within 14 days of receiving the goods. Unfortunately we cannot accept a return outside of this timeframe.

DEFECTIVE GOODS

•In substitution for all and any other right which the Buyer would or might have had but for these conditions, the Seller undertakes to supply free of charge a replacement of the Goods if of the Seller’s manufacture in which a serious defect in materials or workmanship appears within 7 days of delivery at the place of delivery specified by the Buyer for the original Goods provided that in any case the Goods have been accepted and paid for and are of the Seller’s own manufacture.

•In the case of Goods not of the Seller’s manufacture, the Seller will pass on to the Buyer any benefit obtainable under any warranty given by the Seller’s supplier provided that the Goods have been accepted and paid for.

•In the case of any claim under this paragraph the Seller reserves the right at its sole discretion of replacing the Goods or crediting to the Buyer in full, the price paid by the Buyer to the Seller.

•In order to exercise its rights under this paragraph, the Buyer shall inform the Seller within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall return the defective Goods carriage paid to the Seller’s works.

•Nothing herein shall impose any liability upon the Seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, it’s servants or agents including in particular but without prejudice to the generality of the foregoing, any failure by the Buyer to comply with any recommendations of the Seller as to storage and handling of the Goods.

•Where the Goods are for delivery by installments any defect in any installment shall not be a ground for cancellation of the remainder of the installments and the Buyer shall be bound to accept delivery thereof.

•Subject to images taken on delivery.

7. PAYMENT: 

Price and Payment:

a. The Price is exclusive of VAT (unless said otherwise within the price) for the Goods (“the Price”) shall be the quoted price of the Seller and payment of the Price shall be made by the Buyer within the terms of the invoice for the goods. We accept payment via bank transfer, credit card or debit card.

b. If the Price is not paid by the due date, interest shall accrue both before and after judgment on the unpaid portion of the Price at the rate of 5% above LIBOR. In case of any issues or concerns regarding payment, please contact us at the earliest opportunity to discuss alternative payment arrangements or to arrange a payment plan.

c. We reserve the right to suspend further deliveries or services to the Buyer in the event of any overdue payments until such time as the outstanding amount has been received in full.

d. The Buyer shall not be entitled to withhold payment of any amount due to us under the Contract in respect of any claim for damages or otherwise, unless such withholding has been agreed in writing by us.

e. In case of any disputes or discrepancies in the invoice, please contact us within 7 days of receiving the invoice to discuss and resolve the issue. Failure to do so will be taken as acceptance of the invoice and payment will be due in accordance with the invoice terms.

f. In the event that legal action is required to recover any unpaid amounts, the Buyer shall be responsible for all costs, including legal fees and collection charges, incurred by the Seller in such recovery efforts.

8. TERMINATION: 

a. We may suspend further supply or delivery, stop any goods in transit, or terminate our contract by notice in writing to the Buyer if the Buyer is in breach of an obligation hereunder, including but not limited to failure to pay the Price, or if the Buyer becomes unable to pay their debts when they fall due or proceedings are commenced by or against the Buyer alleging bankruptcy or insolvency.

b. Upon termination, any outstanding indebtedness owed by the Buyer to the seller shall immediately become due and payable, and the seller shall be under no further obligation to supply goods to the Buyer.

c. The termination of this agreement shall not affect any rights or remedies which have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

9. WARRANTIES AND LIABILITY: 

a. All warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law, except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977). However, this exclusion does not affect the Buyer's statutory rights under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976).

b. If the Buyer receives Goods with a defect in their quality or condition, or if they do not correspond with the specification, the Buyer must notify the Seller within seven (7) days of delivery or discovery (if the defect or failure was not apparent on reasonable inspection). Failure to do so will result in the Buyer not being entitled to reject the Goods, and the Seller will have no liability for such defect or failure. The Buyer will be bound to pay the price as if the Goods were delivered in accordance with the Contract.

c. If the Buyer provides a valid claim for any of the Goods based on any defect in the quality or condition of the Goods or their failure to meet specification, the Seller shall, at its sole discretion, either replace the Goods (or the part in question) free of charge or refund the Buyer the price of the Goods (or a proportionate part of the price). The Seller shall have no further liability to the Buyer.

d. The Seller shall not be liable to the Buyer for any consequential loss or damage, including loss of profit, costs, expenses, or other claims for consequential compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents, or otherwise) arising out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions, and except in respect of death or personal injury caused by the Seller's negligence.

e. The Seller shall not be liable to the Buyer for any delay or failure to perform its obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller's reasonable control. Such causes shall include (but not be limited to) act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbances, or requisitions; acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-out, or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); difficulties in obtaining raw materials, labour, fuel, parts, or machinery; or power failure or breakdown in machinery.

f. The Buyer agrees that it is solely responsible for using the Goods in a safe and appropriate manner and complying with all applicable laws, regulations, and industry standards. The Seller shall not be liable for any damages or losses resulting from the Buyer's misuse, alteration, or modification of the Goods.

10. BUYER’S INDEMNITY: 

The Buyer shall indemnify and hold harmless the Seller, its affiliates, and their respective officers, directors, employees, agents, successors and assigns from and against any and all losses, claims, damages, liabilities, costs and expenses (including reasonable legal fees and expenses) ("Losses") incurred by the Seller or any of the foregoing parties as a result of or in connection with:

a. any breach by the Buyer of its obligations under these Conditions;

b. any claim, demand, action or proceeding brought against the Seller or any of the foregoing parties by any third party (including any governmental or regulatory authority) arising out of or in connection with the Buyer's use of the Goods;

c. any claim or allegation that the Goods infringe the intellectual property rights or any other rights of any third party; or

d. any claim made against the Seller under Section 6 of the Health and Safety at Work Act 1974 or any equivalent safety legislation outside the United Kingdom, except where such claim arises as a result of the Seller's proven negligence.

The Buyer agrees to cooperate fully with the Seller in the defense of any such claim, demand, action or proceeding and shall not settle any such claim, demand, action or proceeding without the prior written consent of the Seller. The Buyer acknowledges and agrees that the Seller shall have the right to participate in the defense of any such claim, demand, action or proceeding with counsel of its own choosing, at its own expense.

11. RISK/TITLE: 

a. The risk of loss or damage to the goods shall pass to the Buyer upon delivery.

b. Title to the goods shall remain with the Seller until payment in full (in cash or cleared funds) has been received by the Seller for: the goods, and all other amounts owed to the Seller by the Buyer on any account.

c. Until title to the goods passes to the Buyer, the Buyer shall - hold the goods on a fiduciary basis as the Seller's bailee, store the goods separately from all other goods in the Buyer's possession, not remove, deface or obscure any identifying mark or packaging on or relating to the goods, and maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.

d. The Seller shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the Seller.

e. If payment is not made in accordance with these Conditions or if the Buyer is in breach of any other term of the Contract, the Seller shall be entitled to repossess the goods (and for that purpose, the Buyer hereby grants to the Seller an irrevocable license to enter any premises where the goods may be stored at any time) and resell the goods. The Seller shall account to the Buyer for any excess over the price paid by the Buyer for the goods, less any expenses incurred by the Seller in exercising its rights under this clause.

12. GENERAL: 

a. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and delivered personally or sent by registered post, fax or email addressed to that other party at its registered office or principal place of business.

b. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

c. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

d. The Contract shall be governed by the laws of England and Wales, and any dispute arising out of or in connection with the Contract shall be subject to the exclusive jurisdiction of the courts of England and Wales.

e. The Buyer shall not be entitled to assign, transfer, or subcontract any of its rights or obligations under the Contract without the prior written consent of the Seller.

f. The parties agree that no third-party beneficiary rights are created by this Contract.

g. The headings in these Conditions are for convenience only and shall not affect their interpretation.

h. The parties agree to execute and deliver any additional documents reasonably necessary to effectuate the purposes of this Contract.

i. This Contract constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to its subject matter.

Updated 19/04/2023