Terms and Conditions
SD HEALTHCARE LIMITED TERMS AND CONDITIONS OF SALE
1.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Buyer” means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
“Contract” means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions;
“Goods” means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract; any gender includes any other gender; headings shall not affect interpretation; any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force references to “the Goods”, “the Contract”, or any payment includes any part of any of them.
2. BASIS OF THE SALE
2.1. SD Healthcare Limited incorporated and registered in England and Wales with company number 3005986 whose registered office is at 10 Wharfside Business Park, Irlam Wharf Road, Manchester M44 5PN (“SD Healthcare”) shall sell and the Buyer shall buy the Goods subject to these Conditions, which supersede any other terms and which govern the Contract to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing.
2.2. No terms or conditions endorsed upon, delivered with or contained in the Buyer’s order or other document will form part of the Contract simply as a result of such document being delivered to SD Healthcare or referred to in the Contract.
2.3. Any variation to these Conditions is of no effect unless agreed in writing by an authorised representative of SD Healthcare.
2.4. These Conditions constitute the entire agreement between Buyer and SD Healthcare for the supply of the Goods.
2.5. SD Healthcare’s employees or agents are not authorised to make any representation concerning the Goods unless confirmed by SD Healthcare in writing, and the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such unconfirmed representation (unless such representation is made fraudulently).
2.6. Any advice or recommendation given by SD Healthcare or its employees or agents to the Buyer as to the storage, application or use of the Goods which is not confirmed in writing by SD Healthcare is followed or acted upon entirely at the Buyer’s own risk.
2.7. Any typographical, clerical or other error or omission in any document or information issued by SD Healthcare shall be subject to correction without any liability on the part of SD Healthcare.
3. QUOTATIONS, ORDERS AND SPECIFICATIONS
3.1. A quotation by SD Healthcare is not an offer. Quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Buyer’s order by SD Healthcare.
3.2. Each order for Goods and/or Services by the Buyer is an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.
3.3. No contract for the sale of the Goods shall be binding on the SD Healthcare unless the SD Healthcare has issued a quotation which is expressed to be an offer to sell the Goods or has accepted an order placed by the Buyer by whichever is the earlier of:
3.3.1. SD Healthcare’s written acceptance;
3.3.2. delivery of the Goods; or
3.3.3. SD Healthcare’s invoice.
3.4. The Buyer shall ensure that the terms of any order (including any specification) are complete and accurate and that it gives to SD Healthcare any necessary information relating to the Goods within a sufficient time to enable SD Healthcare duly to perform the Contract.
3.5. Where the Goods are manufactured or where standard goods of SD Healthcare are altered in either case in accordance with information, drawings or instructions supplied by the Buyer:
3.5.1. no guarantee or warranty is given by SD Healthcare as to the practicability, efficiency, safety or otherwise of the Goods;
3.5.2. the Buyer shall indemnify SD Healthcare against all liability incurred by SD Healthcare as a result of:
126.96.36.199. the Goods infringing any intellectual property right (including patents, trade marks whether registered or otherwise, unregistered or registered design rights and copyright) or any statutory provision;
188.8.131.52. any impracticability, inefficiency, lack of safety or defect in the Goods where any of these is due wholly or partly to faults or omissions in any such information, drawings or instructions;
184.108.40.206. all work (including design drawings) and any idea, invention or improvement made by or on behalf of SD Healthcare pursuant to the Buyer’s commission and all intellectual property rights therein (including any design right in a design created by SD Healthcare) belong to SD Healthcare; and
3.5.3. SD Healthcare shall not be liable to the Buyer in respect of any loss, damage or claim incurred by or made against the Buyer if any Goods infringe any intellectual property rights (including patents, trade marks whether registered or otherwise, registered and unregistered design rights and copyright).
3.6. SD Healthcare reserves the right to make any changes in the specification of the Goods which are required for the Goods to conform with any applicable safety or other statutory, regulatory or EU requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
4.1. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the SD Healthcare are intended as a guide only and shall not be binding on SD Healthcare Limited and do not form part of the Contract.
4.2. Whilst every effort will be made to supply the Goods in accordance with the quality of samples submitted or quoted for, this cannot be guaranteed and no condition or warranty to this effect shall be implied.
5. CANCELLATION AND DELAY
5.1. No order may be cancelled by the Buyer except with SD Healthcare’s written agreement and on terms that the Buyer shall indemnify SD Healthcare against all loss including loss of profit, costs including the cost of all labour and materials used, damages, charges and expenses incurred by SD Healthcare as a result of cancellation.
5.2. If the Buyer extends or delays the Contract or fails to take delivery of any Goods at the agreed time or, if no time is agreed, within a reasonable time, then the Buyer shall 30 indemnify SD Healthcare in full against all loss including loss of profit, costs including the cost of storage and all labour and materials used, damages, charges or expense incurred by SD Healthcare as a result of such extension, delay or failure.
5.3. SD Healthcare reserves the right to defer the date of delivery or performance, to cancel the Contract or reduce the volume of Goods ordered without liability to the Buyer if it is prevented from, or delayed in carrying on its business by, any cause beyond SD Healthcare’s reasonable control. In such circumstances, the Buyer may also give written notice to cancel the Contract if the cause in question continues for a continuous period in excess of 180 days but in any event shall remain liable to pay for Goods or Services delivered or supplied prior to such cancellation by SD Healthcare or the Buyer.
6.1. The price of the Goods is SD Healthcare’s quoted price or, where no price has been quoted, or a quoted price is no longer valid, the price listed in SD Healthcare’s published price list current at the date of delivery or supply. Where the Goods are supplied for export from the United Kingdom, SD Healthcare’s published export price list applies.
6.2. SD Healthcare reserves the right at any time before delivery or performance to amend the price of the Goods to take into account any variation in cost to SD Healthcare.
6.3. Any price quoted by SD Healthcare for the Goods is exclusive of the cost of delivery to the Buyer (including transport, packaging, insurance and any taxes, duties or surcharges).
6.4. The price is exclusive of any applicable VAT excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to SD Healthcare.
7.1. Subject to any special terms agreed in writing between the Buyer and the SD Healthcare, the SD Healthcare shall invoice the Buyer for the contract price of the Goods on or at any time after delivery of the Goods.
7.2. The Buyer shall pay the Contract Price of the Goods within 30 days of the date of the invoice. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
7.3. For the purposes of these Conditions, payment is received when SD Healthcare receives it in cleared funds.
7.4. Payment by the Buyer shall be made without any deduction or set off.
7.5. SD Healthcare reserves the right to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
7.6. Despite any provision allowing credit, payment is due and payable to SD Healthcare immediately upon cancellation or termination of the Contract.
7.7. SD Healthcare is entitled to set off sums owed by SD Healthcare to the Buyer against sums owed by the Buyer to SD Healthcare.
7.8. SD Healthcare is not obliged to accept orders from any customer or buyer who has not supplied the SD Healthcare with references satisfactory to SD Healthcare.
7.9. If at any time SD Healthcare is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 7.2 of these Terms and Conditions, all amounts owing by the Buyer to SD Healthcare shall be immediately payable in cash.
8.1. Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time by the Buyer collecting the Goods at SD Healthcare’s premises at any time after SD Healthcare has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by SD Healthcare, by SD Healthcare delivering the Goods to that place at the Buyer’s cost. SD Healthcare may make delivery by installments.
8.2. Any dates for delivery and/or performance are approximate only and time of delivery and/or performance is not of the essence.
8.3. No claim for damage or shortages will be considered unless SD Healthcare is given written notice within seven days of delivery. If no such notice is received by SD Healthcare, the Buyer is deemed to have accepted the Goods.
8.4. Any claim for damage, shortages or non-delivery must also be notified to the carrier by the Buyer in the manner and within the appropriate time limits prescribed by the carrier’s terms and conditions.
8.5. Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by SD Healthcare to deliver any one or more of the installments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
8.6. In the event of failure by the Buyer to give the appropriate notices as specified by conditions 8.3 to 8.4 any claim by the Buyer is deemed to have been waived.
9. RISK AND PROPERTY
9.1. Risk of damage to or loss of the Goods shall pass to the Buyer at:
9.1.1. in the case of Goods to be delivered at the SD Healthcare’s premises, the time when SD Healthcare notifies the Buyer that the Goods are available for collection; or
9.1.2. in the case of Goods to be delivered otherwise than at the SD Healthcare’s premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when SD Healthcare tendered delivery of the Goods.
9.2. Once SD Healthcare has notified the Buyer that the goods are ready for collection in accordance with clause 9.1.1, it is the Buyers responsibility to insure the Goods against all risk for their full price.
9.3. In the event that SD Healthcare agrees with the Buyer to store the Goods at its premises pending future collection or delivery, SD Healthcare shall not be responsible for the risk of the Goods which shall be insured by the Buyer in accordance with clause 9.2.
9.4. The Buyer must immediately comply with any request made by SD Healthcare to produce copies of any insurance policy held by it in relation to the Goods.
9.5. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until:
9.5.1. their full price has been received by SD Healthcare in cleared funds or in cash; and
9.5.2. all other sums which are or which become due from the Buyer on any account with SD Healthcare have been received by SD Healthcare.
9.6. If payments received from the Buyer are not stated to refer to a particular invoice SD Healthcare may appropriate such payments to any outstanding invoice.
9.7. The Goods are at the risk of the Buyer from the time of dispatch from SD Healthcare’s premises.
9.8. Until ownership of the Goods passes to the Buyer, the Buyer must:
9.8.1. store the Goods at its own cost on its premises, in an appropriate environment, separately from any other goods and in a manner which makes them readily identifiable as the goods of SD Healthcare;
9.8.2. not destroy, deface or obscure any identifying mark or packaging of the Goods;
9.8.3. maintain the Goods in a satisfactory condition insured on SD Healthcare’s behalf for their full price against all risks; and
9.8.4. hold the proceeds of insurance referred to in condition 9.4.3 on trust for SD Healthcare and not mix them with any other money, nor pay the proceeds into an overdrawn account
9.9. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of SD Healthcare, but if the Buyer does so all money owing by the Buyer to SD Healthcare shall (without prejudice to any other right or remedy of SD Healthcare) forthwith become due and payable
9.10. SD Healthcare reserves the right to repossess any Goods in which SD Healthcare retains title without notice. The Buyer irrevocably authorises SD Healthcare to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which SD Healthcare retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 9.5.
9.11. SD Healthcare may, so as to discharge any overdue payment under the Contract recover or resell the Goods.
9.12. In order to verify the Buyer’s compliance with its obligations under condition 9.4 and to exercise its rights under condition 9.5, SD Healthcare shall be entitled by its employees or agents without notice to enter the Buyer’s premises or such other premises where the Goods are stored.
9.13. The Buyer’s right to possession of the Goods terminates immediately if any of the events set out in condition 12 occurs.
9.14. If the Goods shall be sold by the Buyer before payment for them has been made, any such sale shall be a sale of SD Healthcare’s property on the Buyer’s own behalf and the Buyer deals as principal when making such a sale.
10. WARRANTY AND DEFECTS
10.1. SD Healthcare warrants to the Buyer that the Goods correspond with their specification at the time of delivery.
10.2. SD Healthcare shall not be liable under this warranty (or any other warranty, condition or guarantee) if:
10.2.1. the total price for the Goods has not been paid by the due date for payment; or
10.2.2. any defect arises from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow SD Healthcare’s instructions, whether oral or written, or maintenance requirements, misuse or alteration or repair of the Goods without SD Healthcare’s prior approval.
10.3. This warranty does not extend to parts, materials or equipment not manufactured by SD Healthcare, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to SD Healthcare and which SD Healthcare is entitled to and able to assign to the Buyer.
10.4. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to SD Healthcare and SD Healthcare’s carriers within seven days from the date of delivery or performance or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure.
10.5. In no circumstance shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
10.6. If the Buyer does not notify claims in accordance with condition 10.4 then:
10.6.1. the Buyer shall not be entitled to reject the Goods; and
10.6.2. SD Healthcare shall have no liability for such defect or failure; and
10.6.3. the Buyer shall be bound to pay the full price for the Goods.
10.7. In the event the Buyer has a valid claim which has been notified to SD Healthcare under condition 10.4, SD Healthcare shall be entitled to repair or replace the Goods or carry out the Services again (or the part or element in question) free of charge or, at SD Healthcare’s option, refund to the Buyer the price of the Goods (or a proportionate part of the price), but SD Healthcare shall have no further liability to the Buyer.
10.8. If the Buyer is entitled to reject the Goods because all or part of the Goods are defective, the Buyer must reject all of the Goods and cannot keep some of the Goods and reject the remainder.
10.9. Except in respect of death or personal injury caused by the SD Healthcare’s negligence, or as expressly provided in these Terms and Conditions, SD Healthcare shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of SD Healthcare, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
10.10. The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labeling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by SD Healthcare or any competent governmental or regulatory authority and the Buyer will indemnify SD Healthcare against any liability loss or damage which the SD Healthcare might suffer as a result of the Buyer’s failure to comply with this condition.
11. LIMITATION OF LIABILITY
THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
11.1. Subject to condition 10, the following sets out the entire financial liability of SD Healthcare, including any liability for the acts or omissions of its employees, agents or subcontractors to the Buyer in respect of:
11.1.1. any breach of these Conditions;
11.1.2. any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
11.1.3. any representation, statement or act or omission, including negligence, arising under or in connection with the Contract and in respect of any contemplated performance or lack of performance.
11.2. All warranties, conditions or other terms implied by statute, common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to:
11.2.1. any implied condition that SD Healthcare has or will have the right to sell the Goods when the property is to pass; or
11.2.2. where the Goods are sold to a person dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977, any implied term relating to the conformity of the Goods with their description or sample or as to their quality or fitness for a particular purpose.
11.3. Nothing in these Conditions excludes or limits SD Healthcare’s liability for death or personal injury caused by SD Healthcare’s negligence or for fraudulent misrepresentation.
11.4. Subject to conditions 11.2 and 11.3 SD Healthcare shall not be liable to the Buyer for:
11.4.1. any loss of profit, loss of production, financial loss, depletion of goodwill; and
11.4.2. any indirect loss, damage, costs or expenses whatsoever, in each case which arise out of or in connection with the Contract or its contemplated performance of lack of performance; and
11.5. subject to condition 11.4.1, SD Healthcare’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance or lack of performance of the Contract shall be limited to two times the contract price.
11.6. Nothing in these Terms and Conditions excludes or limits the liability of SD Healthcare:
11.6.1. for death or personal injury caused by SD Healthcare’s negligence;
11.6.2. for any matter which it would be illegal for SD Healthcare to exclude or attempt to exclude its liability; or
11.6.3. for fraud or fraudulent misrepresentation.
12.1. The Contract shall terminate immediately upon service of written notice of termination by SD Healthcare on the Buyer on the happening of any one or more of the following:
12.1.1. the Buyer has, suffers or allows any execution to be levied on its assets or obtained against it; or
12.1.2. the Buyer commits a material breach of any of its obligations under the Contract or under any other contract with SD Healthcare; or
12.1.3. the Buyer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation ;
12.1.4. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
12.1.5. the Buyer ceases or threatens to cease to trade; or
12.1.6. SD Healthcare reasonably apprehends that any of the events mentioned above in clauses 12.1.1 to 12.1.5 is about to occur in relation to the Buyer and notifies the Buyer accordingly.
12.2. Termination of the Contract shall not affect rights and duties accrued before termination, and in particular shall not affect SD Healthcare’s rights contained in condition 9. However, the Buyer’s rights contained in that Condition shall immediately terminate.
13. HEALTH AND SAFETY
13.1. The Buyer agrees to:
13.1.1. indemnify SD Healthcare in respect of any and all claims arising from the Goods being unsafe as a result of the Buyer’s activities;
13.1.2. monitor the safety of the Goods, to provide SD Healthcare with information in relation to any risks presented by the Goods and to co-operate in any action SD Healthcare decides to take to avoid those risks; and
13.1.3. to keep records of the customers to whom the Goods are sold and to provide SD Healthcare with copies of them as and when requested.
14.1. Where the Goods are to be exported to the Buyer the provisions of this condition 14 shall apply.
14.2. Payment shall be made in UK in pounds sterling or such currency as is agreed in writing by SD Healthcare.
14.3. If so requested by SD Healthcare, the Buyer shall establish and maintain in favour of SD Healthcare an irrevocable letter of credit which shall:
14.3.1. be in English;
14.3.2. be confirmed by a UK clearing bank;
14.3.3. be payable on drafts drawn at sight upon presentation to the bank by SD Healthcare of a certified copy of SD Healthcare’s invoice;
14.3.4. be established at least 30 days prior to anticipated shipment date;
14.3.5. cover the full price of the Goods (including applicable taxes); and
14.3.6. be transferable.
14.4. All bank charges and other expenses in relation to the payment or to the letter of credit shall be paid by the Buyer.
14.5. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties the Goods.
14.6. Unless otherwise agreed in writing between the Buyer and SD Healthcare, the Goods shall be delivered EXW or FCA at the option of SD Healthcare (as those terms are defined in Incoterms) and SD Healthcare shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
14.7. The Buyer is responsible for arranging for testing and inspection of the Goods at SD Healthcare’s premises before shipment. SD Healthcare shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
14.8. If there is any conflict between Incoterms and the Contract, the terms of the Contract prevail.
15.1. Each right or remedy of SD Healthcare under the Contract is without prejudice to any other right or remedy of SD Healthcare, whether or not under the Contract.
15.2. If any provision of the Contract, including any provision of condition 9, is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect.
15.3. Failure or delay by SD Healthcare in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.
15.4. Any waiver by SD Healthcare of any breach by the Buyer is not a waiver of any subsequent breach.
15.5. Any notice to be given by either party to the other under these Conditions must be in writing addressed to that other party at its registered office or principal place of business or such other address as may have been notified for these purposes.
15.6. Notices shall be delivered personally or sent by first class post or sent by facsimile transmission.
15.7. A notice is deemed to have been received:
15.7.1. if delivered personally, at the time of delivery;
15.7.2. if sent by prepaid first class post, on the second working day after posting (exclusive of the day of posting);
15.7.3. if sent by facsimile transmission, on a working day prior to 4.00pm at the time of completed transmission and otherwise on the next working day.
15.8. The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.
16.1. SD Healthcare may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.
16.2. The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.
17. ENGLISH LAW
17.1. These Conditions and the Contract between SD Healthcare and the Buyer shall be governed by, and construed in accordance with, the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the English courts.
17.2. Condition 17.1 is for the benefit of SD Healthcare only and as a result SD Healthcare shall not be prevented from taking proceedings in any other courts with jurisdiction, whether concurrently or not.
Terms and conditions of Website use
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www.sdhealthcare.com is a site operated by SD Healthcare Limited (“We”). We are registered in England and Wales as a limited company under company number 3005986 address 10 Wharfside, Business Park, Irlam Wharf Road, Irlam, Manchester, M44 5PN. Part of the SD Healthcare Group Limited.
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