DB ORTHODONTICS LIMITED
TERMS AND CONDITIONS OF SALE
The Customer should read the terms and conditions set out in this document (the "Conditions") carefully as they set out how the Goods will be provided and the obligations on the Customer. The Customer's attention is drawn in particular to the provisions of Conditions 7, 8, and 9.
1. Definitions and Interpretation
1.1. In these Conditions, unless the context requires otherwise, the following definitions apply:
Additional Terms means any terms varying or adding to the Conditions as agreed by DB Orthodontics pursuant to Condition 13.3;
Contract means the contract between DB Orthodontics and the Customer for the sale and purchase of Goods in accordance with these Conditions and, if applicable,
Customer means the person or firm who purchases Goods from DB Orthodontics;
DB Orthodontics means DB Orthodontics Limited, a registered company in England and Wales with company number 01009424, whose registered address is Ryefield Way, Silsden, West Yorkshire, BD20 0EF;
Force Majeure Event means has the meaning given in Condition 11;
Goods means the goods (or any part of them) that DB Orthodontics agrees to supply to
the Customer as set out in the Order;
Intellectual Property Rights means patents, rights to inventions, copyright and related
rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of, confidential information including know-how and trade secrets and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; and
Order means the Customer's order for the Goods, as set out in the Customer's purchase order form, or as placed with DB Orthodontics by telephone, fax, email, through DB Orthodontics' website or with a DB Orthodontics sales representative, as the case may be.
1.2. Interpretation In these Conditions, the following rules apply:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended, re-enacted or superseded. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b) 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; and
(c) a reference to writing or written includes faxes and e-mails.
2. 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 (whether endorsed on, delivered with, or contained in the Customer's Order or other documents) or which are implied by trade, custom, practice or course of dealing.
2.2. 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.
2.3. The Order shall only be deemed to be accepted when DB Orthodontics confirms acceptance orally or in writing or, if earlier, delivers the Goods.
2.4. Once the Contract comes into existence, the Customer shall not cancel or vary the Order without DB Orthodontics express written consent. DB Orthodontics reserves the right to charge the Customer reasonable cancellation charge in the event of such cancellation.
2.5. Any samples, drawings, descriptive matter or advertising produced by DB Orthodontics and any descriptions or illustrations contained in the DB Orthodontics' catalogues or brochures or on its website 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.
2.6. Any quotation given by DB Orthodontics shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
2.7. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
3.1. The Customer must ensure that the Goods meet its requirements and are suitable for its purposes and DB Orthodontics shall not be liable for the Customer's failure to do so.
3.2. Any recommendations made by DB Orthodontics are made in good faith, do not constitute a guarantee and cannot be relied on by the Customer.
3.3. DB Orthodontics reserves the right to amend any descriptions, drawings, specifications, technical data, illustrations, brochures, advertising materials, its website and any other materials provided at any time without notice. DB Orthodontics reserves the right to amend the specification of Goods if required by any applicable statutory or regulatory requirements.
3.4. Certain Goods may be available exclusively online through DB Orthodontics' website or through other promotions from time to time, as stock levels for some Goods may be limited and DB Orthodontics cannot guarantee that certain Goods will always be available even if stated otherwise. Where DB Orthodontics does not have any availability of certain Goods and a Customer makes an Order and payment, DB Orthodontics will endeavour to inform the Customer as soon as reasonably practical and, if applicable, provide an indication of when the Goods are likely to be back in stock. In these circumstances, DB Orthodontics' liability shall be limited to issuing a refund to the Customer for the price paid and DB Orthodontics shall have no liability to the Customer for late delivery.
3.5. DB Orthodontics reserves the right to discontinue any Goods at any time. In circumstances where a Customer has ordered and paid for any Goods that are then discontinued, DB Orthodontics' liability shall be limited to issuing a refund to the Customer for the price paid for the discontinued Goods.
4.1. Unless otherwise agreed in writing by DB Orthodontics, DB Orthodontics shall deliver the Goods to the location set out in the Order (Delivery Location).
4.2. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. DB Orthodontics' record of delivery to the Customer shall be conclusive evidence of such, unless the Customer can provide conclusive contrary evidence.
4.3. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. DB Orthodontics 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 DB Orthodontics with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4. If DB Orthodontics 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. DB Orthodontics 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 DB Orthodontics with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5. If 7 days after the day on which DB Orthodontics attempted delivery of the Goods the Customer has not accepted delivery of them, DB Orthodontics may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.6. The Customer shall not be entitled to reject the Goods if DB Orthodontics delivers up to and including 5% more or less than the quantity and/or volume of Goods ordered, but a pro rata adjustment shall be made to the relevant invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.7. DB Orthodontics may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1. Unless stated otherwise, DB Orthodontics warrants that on delivery, and for a period up until any expiry date specified for particular Goods either on its packaging or on the relevant delivery note, or if no such expiry date is specified a period of 12 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; and
(c) be fit for any purpose held out by DB Orthodontics.
5.2. Subject to Condition 5.3, if:
(a) the Customer gives notice in writing to DB Orthodontics during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 5.1;
(b) DB Orthodontics is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by DB Orthodontics) returns such Goods to DB Orthodontics' place of business at DB Orthodontics' cost, DB Orthodontics shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3. DB Orthodontics shall not be liable for any Goods' failure to comply with the warranty set out in Condition 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with Condition 5.2;
(b) the defect arises because the Customer failed to follow DB Orthodontics 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 DB Orthodontics following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of DB Orthodontics;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4. Except as provided in this Condition 5, DB Orthodontics shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in Condition 5.1.
5.5. The 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.
5.6. These Conditions shall apply to any repaired or replacement Goods supplied by DB Orthodontics.
6. Title and risk
6.1. Unless otherwise agreed in writing, risk in the Goods shall pass to the Customer on completion of delivery of such Goods.
6.2. Title to the Goods shall pass to the Customer at the earlier of:
(a) DB Orthodontics receiving from the Customer payment in full (in cash or cleared funds) for:
(i) the Goods; and
(ii) all other sums which are due to DB Orthodontics;
(b) the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Condition 6.4.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods for which it has not paid separately from all other goods held by the Customer so that they remain readily identifiable as DB Orthodontics' property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory Condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify DB Orthodontics immediately if it becomes subject to any of the events listed in Condition 8.1;
(e) give DB Orthodontics such information relating to the Goods as DB Orthodontics may require from time to time; and
(f) permit or procure permission for DB Orthodontics, its agents and authorised representatives to enter any premises of the Customer or of any third party where the Goods are stored in order to inspect whether the Customer is in compliance with this Condition 6.3 and/or recover the Goods.
6.4. Subject to Condition 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before DB Orthodontics receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as DB Orthodontics' agent; and
(b) title to the Goods shall pass from DB Orthodontics to the Customer immediately before the time at which resale by the Customer occurs.
6.5. If before title to the Goods passes to the Customer the Customer becomes subject to an Insolvency Event (as defined in Condition 8.1), then, without limiting any other right or remedy DB Orthodontics may have:
(a) the Customer must immediately notify DB Orthodontics of the event;
(b) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(c) DB Orthodontics may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) 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.
6.6. If DB Orthodontics repossesses any Goods or the Customer delivers up any Goods, in accordance with this Condition 6 the Contract for those Goods shall be rescinded.
6.7. DB Orthodontics shall be entitled to recover payment for any Goods under a Contract notwithstanding the fact that title in any of the Goods has not passed to the Customer.
7. Price and payment
7.1. All provisions of this Condition 7 shall apply to all Orders, save to the extent an alternative arrangement is agreed in writing by DB Orthodontics.
7.2. The price of the Goods shall be the price set out in the Order or if not specified in the Order, will be DB Orthodontics' published list price at the time of dispatch.
7.3. DB Orthodontics reserves the right to vary the price of the Goods, by giving notice to the Customer at any time prior to delivery of the Goods, to take into account any variation in costs of the Goods which is due to:
(a) any factor beyond DB Orthodontics control (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs);
(b) a request by the Customer to change the delivery date(s), quantities or types or specification of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give DB Orthodontics adequate or accurate information or instructions.
7.4. The price of the Goods is exclusive of:
(a) the costs and charges of packaging, insurance and transport of the Goods, which the Customer shall pay to DB Orthodontics; and
(b) amounts in respect of value added tax (VAT), which the Customer shall pay to DB Orthodontics at the prevailing rate, subject to receipt of a valid VAT invoice.
7.5. DB Orthodontics may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6. The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by DB Orthodontics. Time of payment is of the essence.
7.7. In the event of a failure by the Customer to comply with Condition 7.6, then in addition to the right to charge interest pursuant to Condition 7.8 DB Orthodontics reserves the right to charge reasonable administration charges, including:
(a) £15 for failed payment attempts such as unsuccessfully drawn cheques; and
(b) £35 for commencing any debt recovery actions required; and in each instance applying VAT where applicable.
7.8. If the Customer fails to make any payment due to DB Orthodontics under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount and any charges pursuant to Condition 7.7. The Customer shall indemnify, keep indemnified and hold harmless DB Orthodontics in respect of any loss, liability, damage, costs and expenses (including, without limitation, legal costs) suffered or incurred by DB Orthodontics in recovering any unpaid and overdue sums.
7.9. The Customer shall pay all amounts due under the Contract in full without any setoff, counterclaim, deduction or withholding (except for any deduction or withholding required by law). DB Orthodontics may at any time, without limiting any other rights or remedies, set off any amount owing to it by the Customer against any amount payable by DB Orthodontics to the Customer.
8.1. Without limiting its other rights or remedies, DB Orthodontics may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer (being a body corporate) is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an Insolvency Event);
(b) the Customer (being an individual) is declared bankrupt, enters into any composition or arrangement with his creditors, has a receiver appointed to any of his assets, or ceases to carry on business, takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application or the giving of any notice) by him or any other person in respect of any of these circumstances
(also an Insolvency Event) (or, the Customer being a partnership, has a partner to whom any Insolvency Event applies);
(c) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer fails to pay any amount due under the Contract within 7 days following receipt of written notice of such non-payment by DB Orthodontics.
8.2. Without limiting its other rights or remedies, DB Orthodontics may suspend provision of the Goods under the Contract or any other contract between the Customer and DB Orthodontics if the Customer becomes subject to an Insolvency Event, or DB Orthodontics reasonably believes that the Customer is about to become subject to an Insolvency Event, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3. On termination of the Contract for any reason the Customer shall immediately pay to DB Orthodontics all of DB Orthodontics' outstanding unpaid invoices, any applicable charges and interest.
8.4. Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.5. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. Limitation of liability
9.1. Nothing in these Conditions shall limit or exclude DB Orthodontics' 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; or
(d) any matter in respect of which it would be unlawful for DB Orthodontics to exclude or restrict liability.
9.2. Subject to Condition 9.1:
(a) DB Orthodontics shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
(i) any indirect, special, consequential or pure economic loss or damage;
(ii) any loss of profits, anticipated profits, revenue or business opportunities; or
(iii) damage to goodwill
(in each case arising as a direct or indirect result of the relevant claim); and
(b) DB Orthodontics' 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 500% of the price of the Goods in relation to which the claim arises.
10. Intellectual Property
10.1. Unless otherwise expressly stated in writing by DB Orthodontics, the Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods are and shall remain the sole property of DB Orthodontics or (as the case may be) the third party rights owner.
10.2. To the extent that Goods are to be manufactured in accordance with the Customer's specific instructions or specification, the Customer shall indemnify, keep indemnified and hold harmless DB Orthodontics from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation whether arising in tort (including negligence), in contract or otherwise and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by DB Orthodontics as a result of or in connection with any claim made against DB Orthodontics for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with DB Orthodontics use of the specific instructions or specification. This Condition 10.2 shall survive termination of the Contract.
10.3. DB Orthodontics may inform third parties that it provides or has provided the Goods to the Customer. The Customer licenses DB Orthodontics to use its name and logo(s) for this sole purpose.
11. Force majeure
11.1. 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 which hinders, delays or prevents performance of a party's obligations and which is either beyond that 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 or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12. Data Protection
12.2. Where DB Orthodontics request details or is given details of the Customer's customers or end users for the purposes of handling product complaints or other issues, such information will only be used by DB Orthodontics for resolving such complaints or providing assistance or other product support as required. DB Orthodontics shall be responsible for providing appropriate information to the relevant person and obtaining any necessary consents in accordance with applicable data protection laws in respect of any additional use of the data.
13.1. DB Orthodontics may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of DB Orthodontics.
13.2. The Contract (incorporating these Conditions and any Additional Terms) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of DB Orthodontics which is not set out in the Contract.
13.3. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by DB Orthodontics.
13.4. Failure or delay by DB Orthodontics to enforce, or partially enforce, any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by DB Orthodontics of any breach of, or any default under, any provision of the Contract by the Customer shall be in writing and shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other provisions of the Contract.
13.5. If any provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deletion of a provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
13.6. All notices sent by the Customer to DB Orthodontics must be sent to DB Orthodontics at its registered address (as detailed in Condition 1.1) or by email firstname.lastname@example.org or facsimile or as otherwise agreed by DB Orthodontics. DB Orthodontics may send notices to the Customer at the email or postal address, or by facsimile to the number, provided by the Customer to DB Orthodontics.
13.7. All communications between the parties about the Contract, including any notices to be sent or received under the Contract, must be in writing. Notices shall be deemed served on delivery if delivered by hand, 48 hours after posting if sent by post, and on completion of transmission if sent by email or facsimile.
13.8. No one other than a party to the Contract (and their permitted assignees) shall have any right to enforce any of its terms.
13.9. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between DB Orthodontics and the Customer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
13.10. The Contract and any dispute or claim arising out of or in connection with the formation, construction, performance, validity and all aspects of the Contract shall be governed by and constructed in accordance with the law of England and Wales.
13.11. The parties agree that the courts of England and Wales shall have the nonexclusive jurisdiction to settle any dispute or claim arising out of or in connection with the subject matter, formation, construction, performance, validity and all aspects of the Contract.