Terms & Conditions
1.1 In these conditions:
“Supplier” means Hutchison International a division of Hutchison Technologies Limited or Hutchison Technologies Limited (Registered Number SC176095) having its Registered Office address at Innovation Centre, 1 Harrison Road, Dundee, DD2 3SN;
“Contract” means the contract entered into between the Supplier and the Purchaser to which these conditions apply;
“Intellectual Property Rights” means patents, registered designs, unregistered designs, copyrights, software (including source and object code) database rights, design rights, technical information or know how and similar rights in the United Kingdom and abroad including applications for any of the foregoing.
“Purchaser” means the person/company/firm/government body/NHS trust or business entering into a Contract with the Supplier for the supply of Products and/or Services;
“Products” means products of whatever description provided by the Supplier to a Purchaser;
“Services” means services of whatever description provided by the Supplier to a Purchaser whether as part of the provision of Products or otherwise.
1.2 The singular number includes the plural and vice versa. References to persons include references to companies or any other forms of legal entity. Headings are for convenience only.
1.3 These conditions are the only conditions under which the Supplier contracts. These conditions replace any conditions of a Purchaser and may only be varied or added to with the express approval in writing of the Supplier. These conditions represent the whole understanding of the Supplier and the Purchaser with regard to the Contract.
2. PAYMENT TERMS
2.1 Unless otherwise agreed by the Supplier, payment for Products /Services / Freight Costs incurred by the Supplier shall be made by the Purchaser within 7 days from date of receipt of delivery of goods to the designated delivery address in the UK. Time shall be of the essence in this regard.
2.2 Interest at the rate of 5% per annum above the base rate from time to time fixed by The Royal Bank of Scotland shall accrue on a daily basis on any overdue payments.
2.3 The Purchaser shall be liable for all costs incurred by the Supplier in collection of accounts.
3.1 The Supplier shall freight manage the Products throughout the supply chain and use reasonable commercial endeavours to meet any delivery dates stipulated by a Purchaser but shall not incur any liability for failure to meet any delivery date or perform any Services due to circumstances beyond the reasonable control of the Supplier.
3.2 Any freight charges in relation to the transport of the Products to the premises of the Purchaser shall be in accordance with the Inco terms agreed between the Purchaser and the Supplier. The cost of freight charges incurred by the Supplier on behalf of the Purchaser where the Purchaser is responsible for said freight charges will be paid by the Purchaser within 7 days from receipt of delivery to the Purchaser nominated delivery address.
4. PURCHASER’S CLAIMS
4.1 Claims in respect of non-delivery of Products must be notified to the Supplier in writing within 7 days of receipt of the Supplier’s invoice for such Products.
4.2 Claims for shortages in or damage to Products must be notified to the Supplier and its carrier in writing no later than 3 days following date of delivery of such Products and, where appropriate, recorded on the delivery note signed on behalf of the Purchaser.
4.3 Written notice of any claims for defects in the Products must be given to the Supplier within 30 days from date of dispatch of Products from the Supplier’s premises.
4.4 In the event that any Products require to be returned to the Supplier the following shall apply:-
4.4.1 To increase the efficiency of any returns system for the benefit of the Purchaser the Supplier operates a returns number system. The Purchaser must receive a returns authorisation number from the Supplier prior to returning any Product. This number must be clearly marked on the outside of packaging returning the Product to the Supplier. The Supplier reserves the right to refuse the delivery of returned Products which have not been allocated a returns authorisation number. Any Product returned to the Supplier must be returned to the Supplier for inspection in its original condition and packaging. The Supplier shall not be liable to pay carriage costs in relation to a return of Products and reserves the right to repair or replace any Product at its sole discretion. A restocking charge of 15% of the price for the Product shall be made for Product returned for credit to the Supplier which were correctly supplied by the Supplier.
5. PURCHASER’S WARRANTY
5.1 The Purchaser warrants that all information provided to the Supplier to enable the Supplier to carry out the Contract shall be accurate and any copyright material provided by the Purchaser to the Supplier for inclusion in any Products shall be the property of or shall have been validly assigned to the Purchaser. The Purchaser hereby grants to the Supplier a non-exclusive, royalty-free licence to use, reproduce and copy such copyright material for the purposes of carrying out the Contract. The Purchaser shall keep the Supplier clear of any and all losses, damages or costs sustained by the Supplier as a result of infringement of third-party rights including third party Intellectual Property Rights when complying with the Purchaser’s instructions to carry out the Contract.
6. UNDERTAKINGS BY SUPPLIER
6.1 The Supplier will use reasonable skill and care in the manufacture/supply of Products and/or performance of Services.
6.2 Whilst the Supplier will use reasonable endeavours to ensure that when performing Services and/or providing Products for a Purchaser it does not infringe the rights of a third party, no warranty is given.
6.3 The Supplier shall use reasonable endeavours to remedy any defects within the Products sourced by the Supplier and supplied to the Purchaser, provided that the Purchaser has made the Supplier aware of such defects in the Products within 7 days of receipt of the Product by the Purchaser. This is the Supplier’s sole liability in relation to the Products and/or the Services.
6.4 No representation, warranty, condition or term expressed or implied, statutory or otherwise is given by the Supplier to the Purchaser as to the quality of any products that may be provided under the terms of the Contract or its fitness for any purpose or merchantability. In the event that the Purchaser discovers a material error in the products which substantially affects the Purchaser’s use of the products and notifies the Supplier of the error within 30 days of receipt of the Product by the Purchaser, the Supplier shall at its sole discretion either refund all or part of the sums paid to the Supplier for the Product or alternatively use reasonable endeavours to correct or replace that part of the Product if it does not so comply PROVIDED THAT such noncompliance has not been caused by any modification, variation or addition to the Product or caused by its incorrect use, abuse or corruption of the Product or use with other equipment which is incompatible. To the extent permitted by law the Supplier disclaims all other warranties with respect to the Product provided under the terms of the Contract either express or implied including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
6.5 The Supplier shall not be liable for any indirect or consequential loss or damage including loss of profits or revenue suffered by the Purchaser or a third party howsoever caused.
7.1 Any credit given by the Supplier to the Purchaser may be withdrawn or limited at any time by the Supplier. No credit will be given for returned Products unless the return has been previously authorised by the Supplier.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Any and all background Intellectual Property Rights used by the Supplier and or the Supplier’s Suppliers in providing the Products or Services shall remain the property of the Supplier Intellectual Property Rights Holder. In the event that any Intellectual Property Rights are generated by the Supplier or Suppliers of the Supplier in performance of the Contract, all such Intellectual Property Rights shall belong to the Supplier that generated the Intellectual Property Rights. The Supplier and the Supplier’s Suppliers will grant to the Purchaser a non-exclusive, non-transferable, royalty-free licence to use the original copyright material generated by the Supplier in directly providing the Services and contained in the Products. For the avoidance of doubt, said licence shall not entitle the Purchaser to copy or reproduce or reverse engineer or reformat any such copyright material without the prior written permission of the Supplier.
9.1 The Supplier reserves the right to terminate any Contract with the Purchaser by immediate written notice (i) should the Purchaser be in material breach of its obligations and fail to remedy such breach within seven days following written notice from the Supplier or (ii) should the Purchaser be or become bankrupt or make any arrangements with his creditors or (being a company) becomes apparently insolvent or has a liquidator or receiver appointed or in any case) ceases, or threatens to cease, trading.
10. PAYMENT OF CONTRACT PRICE
10.1 Payment of the Contract price will be made in full without any deduction. No withholding or retention or main contractor's discounts shall be permitted without the Supplier’s prior approval.
11.1 Purchaser will keep confidential and not disclose to any third party any trade secrets or privileged confidential information of the Supplier which may be acquired as a result of the performance by the Supplier of the Contract for the Purchaser.
11.2 The Purchaser agrees not to make the Products available to any third party without the prior written consent of the Supplier.
12.1 Purchaser will not assign any obligations under the Contract without the Supplier’s prior written consent.
13. TAXES/IMPORT DUTIES
13.1 Purchaser will pay all sales taxes (including Value Added Tax), customs or other import duties, in accordance with the Inco terms agree with the seller. For the avoidance of doubt, where the Inco Term is DDP delivered duty paid, the supplier will be responsible for import taxes and duties, where the Inco Term is FOB, FCA, DDU, the purchaser will be responsible for import duties and taxes. This list of Inco Terms is not exhaustive.
14. RETENTION AND RISK
14.1 Risk of damage to or loss of any Products shall pass to the Purchaser on the earlier of:-
a) the time that the Products are collected by the Purchaser from the Supplier; or
b) the time that the Products are placed in the hands of the Purchaser’s agent, including any carrier of the Products; or
c) the time that the Products are delivered to the address of the Purchaser notified to the Supplier for delivery.
14.2 Notwithstanding delivery of and the passing of risk in any Product and notwithstanding any other provision of these conditions, the Supplier reserves all title and rights of property to each item of the Products provided by the Supplier and the property therein shall not pass to the Purchaser until the Supplier has received in cash or cleared funds payment in full for such item and all other Products, and/or Services supplied by the Supplier to the Purchaser.
14.3 Until such time as the title to the Products passes to the Purchaser, the Purchaser shall hold such Products as fiduciary agent for the Supplier and shall retain possession of and shall keep them separate from the property of the Purchaser and third parties and shall keep the same properly stored and protected and identified as the property of the Supplier. The Purchaser shall not be entitled to pledge, charge, encumber or otherwise dispose of the Products or any interest therein or purport to do so until title passes to the Purchaser. If the Purchaser sells any of the Products prior to payment being received in full by the Supplier, the Purchaser shall account to the Supplier for the proceeds of sale to the extent that the Supplier has not received payment of the price of Products and pending payment, the Purchaser shall hold such proceeds on trust for the Supplier and maintain such in a separate bank account.
14.4 The Purchaser shall keep the Products fully insured for their full replacement value against all risks between risk passing and property passing and shall on demand produce evidence thereof to the Supplier.
15. GOVERNING LAW
15.1 The Law of Scotland shall apply to these conditions. The Purchaser agrees to submit to the jurisdiction of the Scottish Courts.
16. SPECIFICATION AND AVAILABILITY
16.1 The Supplier reserves the right prior to delivery of Products or the supply of Services to alter any specification thereof or to revise prices and/or withdraw Products without prior notice. The Supplier will inform the Purchaser of any changes prior to accepting the order from the Purchaser. The Purchaser may cancel the order if the specification changes result in the product being unsuitable for the Purchaser’s application and requirements.
16.2 All Products are subject to availability. All details should be confirmed at the time of ordering. All prices exclude Value Added Tax where applicable.
17.1 Any disputes shall be referred to an independent expert mutually appointed, whose decision shall be final and not open to challenge. Any other disputes shall be referred to arbitration by a single arbiter to be mutually appointed. In the event of failure to agree, the independent expert or arbiter shall be nominated by the President of The Law Society of Scotland on the application of the Supplier or the Purchaser.