OrcaGel™ Standard Terms of Business
1. About these Terms
1.1 In these Terms, certain definitions and interpretations apply. These definitions can be found in the Glossary at Clause 32.
1.2 These Terms apply to and form part of the Contract between ORCAGEL and the Customer. They supersede any previously issued terms. No terms issued by the Customer shall form part of the Contract.
1.3 No variation of these Terms or to an Order or to the Contract, shall be binding unless expressly agreed in writing on behalf of ORCAGEL.
1.4 Each order by the Customer to ORCAGEL shall be an offer to purchase the Deliverables subject to these Terms.
1.5 Unless otherwise agreed, for Products which are in stock, Orders placed before 1500 on a Business Day will usually be processed and despatched the same day on a next Business Day delivery service.
1.6 ORCAGEL may accept or reject an order at its discretion. An order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of the issue of an order acknowledgement by ORCAGEL or ORCAGEL’s delivering or performing the Deliverables.
1.7 ORCAGEL may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
1.8 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
2. Price
2.1 The price for the Deliverables shall be as set out in the Order (Price) and are exclusive of delivery costs and VAT.
3. Payment
3.1 ORCAGEL shall invoice the Customer for the Deliverables on delivery or performance of the Deliverables.
3.2 The Customer shall pay all invoices in full, without deduction or set-off, in cleared funds within 30 days of the date of each invoice to the bank account nominated by ORCAGEL.
3.3 Time of payment is of the essence. Where sums due under these Terms are not paid in full by the due date, ORCAGEL may charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force.
4. Credit limit
ORCAGEL may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
5. Delivery and performance
5.1 The Products shall be delivered by ORCAGEL to the Location on the date specified in the Order. The Products shall be deemed delivered by ORCAGEL on unloading of the Products at the Location.
5.2 ORCAGEL may deliver or perform the Deliverables in instalments. Any delay in performance or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.3 Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:
5.3.1 the date of the Order;
5.3.2 the relevant Customer and ORCAGEL details;
5.3.3 the product numbers and type and quantity of Products in the consignment; and
5.3.4 any special instructions, handling and other requests.
5.4 ORCAGEL shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.
5.5 ORCAGEL shall not be liable for any delay in or failure of performance caused by the Customer’s failure to: (i) provide an accurate address for the Location, (ii) provide a member of staff to take delivery and/or sign a delivery note or (iii) provide ORCAGEL with adequate instructions for performance or delivery.
6. Specialist Delivery Services
6.1 In the event that the Customer seeks to vary the delivery date for Products ordered for Specialist Delivery Services, the Customer will be responsible for ORCAGEL’s reasonable costs incurred as a result of such variation, including, without limitation, the cost of engaging third party service providers.
7. Risk
Risk in the Products shall pass to the Customer on delivery.
8. Title
8.1 Title to the Products shall pass to the Customer once ORCAGEL has received payment in full and cleared funds for the Products.
8.2 Until title to the Products has passed to the Customer, the Customer shall:
8.2.1 hold the Products as bailee for ORCAGEL;
8.2.2 store the Products separately from all other material in the Customer’s possession;
8.2.3 take all reasonable care of the Products and keep them in the condition in which they were delivered;
8.2.4 insure the Products from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting ORCAGEL’s interest on the policy;
8.2.5 ensure that the Products are clearly identifiable as belonging to ORCAGEL;
8.2.6 not remove or alter any mark on or packaging of the Products;
8.2.7 inform ORCAGEL immediately if it becomes subject to any of the events or circumstances set out in clause 18.2; and
8.2.8 on reasonable notice permit ORCAGEL to inspect the Products during the Customer’s normal business hours and provide ORCAGEL with such information concerning the Products as ORCAGEL may request from time to time.
8.3 Notwithstanding clause 8.2, the Customer may use or resell the Products in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 18.1 or 18.2 has occurred or is likely to occur.
8.4 If, at any time before title to the Products has passed to the Customer, the Customer informs ORCAGEL, or ORCAGEL reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 18.1 or 18.2, ORCAGEL may:
8.4.1 require the Customer to re-deliver the Products to ORCAGEL; and
8.4.2 if the Customer fails to do so promptly, enter any premises where the Products are stored and repossess them.
9. Manufacturer’s Warranties
ORCAGEL shall take all reasonable steps to pass on to the Customer the benefit of third-party manufacturer warranties in relation to the Products.
10. Anti-bribery
10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
10.2.1 all of that party’s personnel;
10.2.2 all others associated with that party; and
10.2.3 all of that party’s subcontractors;
involved in performing the Contract so comply.
11. Anti-slavery
11.1.1 neither the Customer nor any of its officers, employees, agents or subcontractors has:
a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence);
b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
11.1.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy; and
11.1.3 it shall notify ORCAGEL immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of Customer’s obligations under clause 11.1.
12. Indemnity and insurance
12.1 The Customer shall indemnify, and keep indemnified, ORCAGEL from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by ORCAGEL as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
12.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
13. Limitation of liability
13.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.
13.2 Subject to clauses 13.5 and 13.6, ORCAGEL’s total liability shall not exceed whichever is the lower of i) the total Contract value; or ii) the sum of £1,000,000.
13.3 Subject to clauses 13.5 and 13.6, ORCAGEL’s total liability shall not exceed whichever is the lower of i) the total Contract value; or ii) the sum of £1,000,000.
13.4 Subject to clauses 13.5 and 13.6, ORCAGEL shall not be liable for any of the following (whether direct or indirect): loss of profit; loss of use; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill.
13.5 The limitations of liability set out in clauses 13.2 to 13.4 shall not apply in respect of any indemnities given by either party under the Contract.
13.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
13.6.1 death or personal injury caused by negligence
13.6.2 fraud or fraudulent misrepresentation; or
13.6.3 any other losses which cannot be excluded or limited by applicable law.
14. Confidentiality and announcements
14.1 Customer shall keep confidential all Confidential Information of ORCAGEL and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
14.1.1 any information which was in the public domain at the date of the Contract;
14.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
14.2.3 any information which is independently developed by the Customer without using information supplied by ORCAGEL; or
14.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
15. Processing of personal data
15.1 The parties agree that the Customer is a Controller and that ORCAGEL is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to ORCAGEL in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
15.2 A shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
15.3 ORCAGEL shall:
15.3.1 only process the Protected Data in accordance with the Contract, except to the extent:
a) that alternative processing instructions are agreed between the parties in writing; or
b) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
15.4 Taking into account the state of technical development and the nature of processing, ORCAGEL shall implement and maintain adequate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
15.5 ORCAGEL shall not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer.
15.6 The Customer authorises the appointment of ORCAGEL’s third party carriers of the Products as Sub-Processors.
15.7 ORCAGEL shall (at the Customer’s cost):
15.7.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to ORCAGEL; and
15.7.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
15.8 ORCAGEL shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom without the prior written authorisation of the Customer.
15.9 ORCAGEL shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate ORCAGEL’s compliance with the obligations placed on it under this clause 15 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits by the Customer (at the Customer’s cost) for this purpose.
16. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 90 days, the party not affected may terminate the Contract by written notice to the other party.
17. Termination
17.1 Either party may terminate the Contract at any time by giving notice in writing to the other party if such other party commits a material breach of the Contract and such breach is not remediable, or if such party commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach.
17.2 Either party may terminate the Contract at any time by giving notice in writing to the other party if such party is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986, has a receiver, administrator or administrative receiver appointed over all or any part of its undertaking, has a resolution passed for its winding up or is subject to any other analogous events or circumstances in any jurisdiction;
17.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of ORCAGEL at any time up to the date of termination.
18. Complaints procedure
18.1 In the event that the Customer has any complaint or similar issue arising out of or in connection with the Contract, such complaint shall be dealt with in accordance with ORCAGEL’s Complaints Procedure.
19. Notices
19.1 Any notice given by a party under these Terms shall be sent to the relevant party at the address set out in the Contract and may be given, and are deemed received:
19.1.1 by hand: on receipt of a signature at the time of delivery;
19.1.2 by Signed For post: at 9.00 am on the second Business Day after posting; and
19.1.3 by email: on receipt of a delivery receipt email from the correct address.
20. Entire agreement
20.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
20.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
20.3 Nothing in these Terms purports to limit or exclude any liability for fraud.
21. Assignment
21.1 The Customer may not assign, subcontract, or encumber any right or obligation under the Contract, in whole or in part, without ORCAGEL’s prior written consent.
21.2 Notwithstanding clause 21.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives ORCAGEL prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
22. Set off
22.1 ORCAGEL shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which ORCAGEL has with the Customer.
22.2 The Customer shall pay all sums that it owes to ORCAGEL under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
23. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
24. Severance
24.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
24.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable.
25. Waiver
25.1 No failure, delay or omission by ORCAGEL in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
25.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by ORCAGEL shall prevent any future exercise of it or the exercise of any other right, power or remedy by ORCAGEL.
26. Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
27. Conflicts within contract
If there is a conflict between the terms contained in the Terms and the terms of the Order, the terms of the Terms shall prevail.
28. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
29. Third party rights
29.1 Except as expressly provided for in clause 29.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
29.2 Any Affiliate of ORCAGEL shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
30. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
31. Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
32. Glossary
32.1 In these Terms:
Affiliate
means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Bribery Laws
means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction;
Business Day
means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
Confidential Information
means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;
Contract
means the agreement between ORCAGEL and the Customer for the sale and purchase of the Deliverables incorporating these Terms and the Order;
Control
means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company;
Controller
shall have the meaning given in applicable Data Protection Laws from time to time;
Customer
means the person who purchases the Deliverables from ORCAGEL and whose details are set out in the Order;
Data Protection Laws
means, as binding on either party or the Services:
the GDPR;
the Data Protection Act 2018;
any laws which implement any such laws; and
any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Subject
shall have the meaning in applicable Data Protection Laws from time to time;
Deliverables
means the Products or Services or both as the case may be;
Force Majeure
means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract;
GDPR
means the General Data Protection Regulation, Regulation (EU) 2016/679;
Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights, in each case whether registered or not and including any applications to protect or register such rights, and renewals and extensions of such rights or applications, whether vested, contingent or future, to which the relevant party is or may be entitled, and wherever existing;
Location
means the address for delivery of the Products and performance of the Services as set out in the Order;
Modern Slavery Policy
means ORCAGEL’s anti-slavery and human trafficking policy in force and notified to the Customer from time to time;
MSA Offence
has the meaning given in clause 11.1.1;
Order
means the Customer’s order for the Deliverables as set out in ORCAGEL’s order acknowledgement form;
ORCAGEL
means OrcaGel Limited, company number SC658374, registered office Blackhouse Circle, Peterhead, AB42 1BN, United Kingdom;
Personal Data
has the meaning given in the applicable Data Protection Laws from time to time;
Personal Data Breach
has the meaning given in the applicable Data Protection Laws from time to time;
Price
has the meaning given in clause 2.1;
Processing
has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);
Processor
has the meaning given to it in applicable Data Protection Laws from time to time;
Products
means the products and related accessories set out in the Order and to be supplied by ORCAGEL to the Customer;
Protected Data
means Personal Data received from or on behalf of the Customer in connection with the performance of ORCAGEL’s obligations under the Contract;
Services
means the services set out in the Order and to be supplied by ORCAGEL to the Customer and which may include, without limitation, the Specialist Delivery Services, the services of a tissue viability nurse (TVN) and/or customer training in the use of the Products;
Specialist Delivery Services
Also known as ‘White Glove Delivery’, means a specialist delivery service for Products when ordered in bulk, comprising the arrangement and performance of third party specialist transport and delivery services;
Specification
means the description or specification of the Deliverables set out or referred to in the Order;
Sub-Processor
means any agent, subcontractor or other third party (excluding its employees) engaged by ORCAGEL for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
Terms
means ORCAGEL’s standard terms of business set out in this document; and
VAT
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.
32.2 In these Terms, unless the context otherwise requires:
32.2.1 any clause or heading in these Terms are included for convenience only and shall have no effect on the interpretation of these Terms;
32.2.2 a reference to a ‘party’ means either ORCAGEL or the Customer and includes that party’s personal representatives, successors and permitted assigns; and
32.2.3 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.