TERMS AND CONDITIONS FOR THE MANUFACTURE AND SUPPLY OF ORTHOTIC DEVICES BY FOOTHEALTH UK LIMITED
1. DEFINITIONS
1.1 In these Conditions (which include the information set-out overleaf), the following definitions apply:
Contract: a contract between Foot Health and the Customer for the supply of an Orthotic Device manufactured by Foot Health.
Customer: the person identified overleaf purchasing the Orthotic Device from Foot Health.
Orthotic Device: the prospective orthotic device or devices (or any part of them) which is the subject of an Order.
Order: any order by the Customer of an Orthotic Device consisting of a Prescription Form, the clinic specifications stated overleaf, and:
(a) a data file from a orthotic laser scanning machine containing all of the data required by Foot Health to complete the Order; or
(b) a foam cast box or boxes containing an impression of a foot or feet that would allow Foot Health to complete the Order; or
(c) a plaster cast of a foot or feet that would allow Foot Health to complete the Order .
Prescription Form: a completed prescription for an Orthotic Device provided by the Customer to Foot Health in the standard form required by Foot Health from time to time.
Foot Health:FOOT HEALTH UK LIMITED registered in England and Wales with company number 06679079.
Foot Health Materials: has the meaning set out in clause 7.2.
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 statutory 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; and
(e) a reference to writing or written includes faxes and e-mails.
2. foam cast boxes
2.1 Foot Health may in its absolute discretion make foam cast boxes (or equivalent materials for taking an impression of a foot) available to the Customer. The Customer agrees to use the same solely for the purpose of placing Orders.
3. Basis of contract
3.1 Any Order received by Foot Health by post, fax or e-mail from the Customer constitutes an offer by the Customer to purchase an Orthotic Device in accordance with these Conditions.
3.2 If Foot Health wishes to accept the Order it will send a communication to the Customer by post, fax or e-mail which will either:
(a) accept the Order in which case such acceptance shall constitute acceptance of the Customer’s offer made in accordance with clause 3.1(above) and a Contract shall have been made on the date of that acceptance incorporating these Conditions; or
(b) set out any special terms or conditions to be imposed on the Contract which shall constitute a counter-offer incorporating these Conditions which the Customer may either accept or reject.
3.3 Foot Health is not obliged to provide training, before or after-sales advice, consultancy or any other service in relation to the Orthotic Devices.
3.4 The information contained in these Conditions, Orders and any other terms and conditions entered into by Foot Health and the Customer from time to time in writing constitute 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 Foot Health which is not set out therein. Any samples, drawings, descriptive matter or advertising issued by Foot Health and any descriptions or illustrations contained in Foot Health’s catalogues or brochures are issued or published for the sole purpose of giving an approximate representation of the Orthotic Devices described in them. They shall not form part of the Contract or any other contract between Foot Health and the Customer for the supply of Orthotic Devices.
3.5 Any quotation or price list given by Foot Health shall not constitute an offer and is only valid for the period of 21days from its issue.
3.6 These Conditions apply to each 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.
4. CANCELLATION
4.1 Foot Health starts to manufacture an Orthotic Device soon after it accepts the relevant Order. Orthotic Devices are bespoke and made to order. As a result the Customer’s right to cancel an Order ceases when that Order is accepted in accordance with clause 3.
5. Delivery of Orthotic Devices
5.1 Foot Health shall deliver the Orthotic Device to the Customer’s premises at any time after they have been manufactured and at the cost of the Customer.
5.2 Delivery shall be completed when the Orthotic Device arrives at the Customer’s premises and risk shall pass on delivery.
5.3 Any dates quoted for delivery of an Orthotic Device are approximate only, and the time of delivery is not of the essence. Foot Health shall not be liable for any delay in delivery of or failure to deliver an Orthotic Device that is caused by a Force Majeure Event or the Customer’s failure to provide Foot Health with a complete Order or adequate delivery instructions.
5.4 If Foot Health fails to deliver (or otherwise provide) an Orthotic Device, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining a replacement Orthotic Device of similar description and quality in the cheapest market available, less the price of the Orthotic Device.
6. Quality of Orthotic Devices
6.1 Foot Health warrants that on delivery each Orthotic Device shall:
(a) conform in all material respects with the Order;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to clause 6.3,if:
(a) the Customer gives notice in writing within a reasonable time of discovery that an Orthotic Device does not comply with the warranty set out in clause 6.1;
(b) Foot Health is given a reasonable opportunity of examining such Orthotic Device; and
(c) the Customer (if asked to do so by Foot Health) returns such Orthotic Device to Foot Health’s place of business at the Customer’s cost,
Foot Health shall, at its option, repair or replace the defective Orthotic Device, or refund the price of the defective Orthotic Device in full but not any consultancy fee or travelling costs that have been paid by the Customer.
6.3 Foot Health shall not be liable for the Orthotic Device’s failure to comply with the warranty in clause 6.1 if:
(a) further use is made of such Orthotic Device after the Customer has given a notice in accordance with clause 6.2;
(b) the defect arises because of a failure to follow Foot Health’s oral or written instructions as to the storage, installation, use or maintenance of the Orthotic Device or (if there are none) good trade practice;
(c) the defect arises as a result of Foot Health following the information set out in the relevant Order;
(d) the Orthotic Device is altered or repaired without the written consent of Foot Health; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
6.4 Except as provided in this clause 6, Foot Health shall have no liability to the Customer in respect of the Orthotic Device’s failure to comply with the warranty set out in clause
6.5 These Conditions shall apply to any repaired or replacement Orthotic Device supplied by Foot Health under clause 6.2.
7. Customer’s obligations
7.1 The Customer shall ensure that the information provided in each Order is complete and accurate.
7.2 The Customer shall co-operate with Foot Health in all matters relating to the supply of each Orthotic Device andshall keep and maintain all materials, equipment, documents and other property that may be supplied by Foot Health (Foot Health Materials) at the Customer’s premises in safe custody and its own risk and shall not dispose of or use Foot Health Materials other than for the purposes of obtaining and placing Orders.
7.3 If the performance of Foot Health’s obligations under a Contract is prevented or delayed by any act or omission of a Customer, particularly any missing information or other deficiency in an Order (Customer Default) Foot Health shall without limiting its other rights or remedies have the right to suspend performance of its obligations under the Contract until the Customer remedies the Customer Default.
8. Charges and payment
8.1 Foot Health shall not be obliged to comply with its obligations in respect of an Order until such time as payment is received in cleared funds by Foot Health for the relevant Orthotic Device.
8.2 The sign-up fee noted overleaf is payable on signature of these Conditions and is non-refundable.
8.3 The price per pair of Orthotic Devices and for postage and packaging shall be the price noted overleaf (as amended from time to time in accordance with clause 8.4) or such price as is contained in any counter-offer made by Foot Health.
8.4 Save in respect of accepted Orders, Foot Health reserves the right to increase the price of Orthotic Devices and for postage and packaging with immediate effect, by giving notice to the Customer, including for the avoidance of doubt but without limitation in the event that the Customer fails to place the number of Orders per week noted overleaf.
8.5 The Customer shall make payment for an Orthotic Device at the same time as placing an Order. If the Order is not accepted by Foot Health in accordance with clause 3.2 Foot Health shall refund such payment within a reasonable period.
8.6 Subject to clause 8.1, exceptionally and with the written consent of Foot Health, the Customer may be permitted to pay for Orthotics Devices on receipt of an invoice. In such cases the Customer shall pay each invoice submitted by Foot Health within 30 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by Foot Health. Time for payment shall be of the essence.
8.7 Unless expressly stated otherwise, all amounts payable by the Customer are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) which is payable in addition and accordance with clauses 8.5 and 8.6 above.
8.8 Without limiting any other right or remedy of Foot Health, if the Customer fails to make any payment due to Foot Health under the Contract by the due date for payment (Due Date), Foot Health shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current HSBC Bank plc’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
8.9 The Customer shall pay all amounts due under the Contract in full without any deduction or set off.
9. Limitation of liability: the customer’s attention is particularly drawn to this clause
9.1 Nothing in these Conditions shall limit or exclude Foot Health’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1:
(a) Foot Health shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with these Conditions and all Contracts; and
(b) Foot Health’s total liability to the Customer in respect of all other losses arising under or in connection with these Conditions and all Contracts, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed £100,000.
9.3 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 these Conditions and all Contracts.
9.4 This clause 9 shall survive termination of the Conditions and/or any Contract.
10. nature of the contract
10.1 There is no obligation on Foot Health to accept an Order.
10.2 These Conditions form the basis of each Contract pursuant to which an Orthotic Device is sold.
10.3 Without limiting its other rights or remedies, each party may terminate a Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach;
(b) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(c) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
(d) the other party becomes insolvent or being a limited company has an administrative receiver or administrator or liquidator appointed.
10.4 Without limiting its other rights or remedies, Foot Health may terminate a Contract:
(a) by giving the Customer 5 days written notice;
(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.5 Without limiting its other rights or remedies, Foot Health shall have the right to suspend all further deliveries of Orthotic Devices under Contracts or any other contract between the Customer and Foot Health if the Customer fails to make pay any amount due under any Contract on the due date for payment.
11. Consequences of termination
On termination of a Contract for any reason:
(a) the Customer shall immediately pay to Foot Health all of Foot Health’s outstanding unpaid invoices and interest and for any Orthotic Devices supplied but for which no invoice has yet been submitted;
(b) the Customer shall return all of Foot Health Materials and any Orthotic Devices which have not been paid for in full; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. General
12.1 Force majeure:
(a) For the purposes of these Conditions,Force MajeureEvent means an event beyond the reasonable control of Foot Health. Foot Health shall not be liable to the Customer as a result of any delay or failure to perform its obligations under any Contract as a result of a Force Majeure Event.
(b) If the Force Majeure Event prevents Foot Health from providing Orthotic Devices for more than three weeks, Foot Health shall, without limiting its other rights or remedies, have the right to terminate any relevant Contracts immediately by giving written notice to the Customer.
12.2 Assignment and subcontracting:
The Customer shall not, without the prior written consent of Foot Health, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under Contract.
12.3 Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number and shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Day after posting, or 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, on the next Day after transmission.
(b) This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails.
12.4 Third parties: A person who is not a party to any Contract shall not have any rights under or in connection with it.
12.5 Variation: Any variation, including the introduction of any additional terms and conditions, to these Conditions and/or a Contract shall only be binding when agreed in writing and signed by Foot Health.
12.6 Governing law and jurisdiction: These Conditions and all Contracts shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
