Standard Terms of Supply
1. About these Terms
1.1 In these Terms, certain definitions and interpretations apply. These definitions can be found in the Glossary at Clause 3
1.2 These Terms apply to and form part of the Contract between OSKA and the Distributor. They supersede any previously issued terms. No terms issued by the Distributor 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 OSKA.
1.4 Each order by the Distributor to OSKA 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 OSKA 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 OSKA or OSKA’s delivering or performing the Deliverables.
1.7 OSKA may issue quotations to the Distributor 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 Distributor.
1.8 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
2.1 The price for the Deliverables shall be as set out in the Order (Price) and are exclusive of delivery costs and VAT.
2.2 OSKA may increase the Price at any time for any reason on notice in writing to the Distributor.
3.1 OSKA shall invoice the Distributor for the Deliverables on delivery or performance of the Deliverables.
3.2 The Distributor 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 OSKA.
3.3 Time of payment is of the essence. Where sums due under these Terms are not paid in full by the due date, OSKA may:
3.3.1 charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force; and/or
3.3.2 charge a late payment fee of up to £100.
4. Credit limit
OSKA may set and vary credit limits from time to time and withhold all further supplies if the Distributor exceeds such credit limit.
5. Delivery and performance
5.1 The Products shall be delivered by OSKA to the Location on the date specified in the Order. The Products shall be deemed delivered by OSKA on unloading of the Products at the Location.
5.2 OSKA may deliver or perform the Deliverables in instalments. Any delay in performance or defect in an instalment shall not entitle the Distributor 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 Distributor and OSKA 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 OSKA shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.
5.5 OSKA shall not be liable for any delay in or failure of performance caused by the Distributor’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 OSKA with adequate instructions for performance or delivery.
6.1 OSKA warrants that, for the Warranty Period, the Products shall:
6.1.1 conform in all material respects to their description and the Specification;
6.1.2 be free from material defects; and
6.1.3 be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13.
7. Risk and title
7.1 Risk in the Products shall pass to the Distributor on delivery.
7.2 Title to the Products shall pass to the Distributor once OSKA has received payment in full and cleared funds for the Products.
7.3 Until title to the Products has passed to the Distributor, the Distributor shall:
7.3.1 hold the Products as bailee for OSKA;
7.3.2 store the Products separately from all other material in the Distributor’s possession;
7.3.3 take all reasonable care of the Products and keep them in the condition in which they were delivered;
7.3.4 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 OSKA’s interest on the policy;
7.3.5 ensure that the Products are clearly identifiable as belonging to OSKA;
7.3.6 not remove or alter any mark on or packaging of the Products;
7.3.7 inform OSKA immediately if it becomes subject to any of the events or circumstances set out in clause 17.2; and
7.3.8 on reasonable notice permit OSKA to inspect the Products during the Distributor’s normal business hours and provide OSKA with such information concerning the Products as OSKA may request from time to time.
7.4 Notwithstanding clause 9.3, the Distributor 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 17.117.1 or 17.2 has occurred or is likely to occur.
7.5 If, at any time before title to the Products has passed to the Distributor, the Distributor informs OSKA, or OSKA reasonably believes, that the Distributor has or is likely to become subject to any of the events specified in clauses 17.117.1 or 17.2, OSKA may:
7.5.1 require the Distributor to re-deliver the Products to OSKA; and
7.5.2 if the Distributor fails to do so promptly, enter any premises where the Products are stored and repossess them.
8.1 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.
8.2 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:
8.2.1 all of that party’s personnel;
8.2.2 all others associated with that party; and
8.2.3 all of that party’s subcontractors;
involved in performing the Contract so comply.
8.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
8.4 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 10.
9.1 The Distributor undertakes, warrants and represents that:
9.1.1 neither the Distributor 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;
9.1.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy; and
9.1.3 it shall notify OSKA 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 Distributor’s obligations under clause 11.1.
10. Indemnity and insurance
10.1 The Distributor shall indemnify, and keep indemnified, OSKA from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by OSKA as a result of or in connection with the Distributor’s breach of any of the Distributor’s obligations under the Contract.
10.2 The Distributor 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 Distributor shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
11. Limitation of liability
11.1 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.
11.2 Subject to clauses 13.5 and 13.6, OSKA’s total liability shall not exceed whichever is the lower of i) the total Contract value; or ii) the sum of £1,000,000.
11.3 Subject to clauses 13.5 and 13.6, OSKA shall not be liable for consequential, indirect or special losses.
11.4 Subject to clauses 13.5 and 13.6, OSKA 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.
11.5 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.
11.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
11.6.1 death or personal injury caused by negligence;
11.6.2 fraud or fraudulent misrepresentation; or
11.6.3 any other losses which cannot be excluded or limited by applicable law.
12. Confidentiality and announcements
12.1 The Distributor shall keep confidential all Confidential Information of OSKA and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
12.1.1 any information which was in the public domain at the date of the Contract;
12.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
12.1.3 any information which is independently developed by the Distributor without using information supplied by OSKA; or
12.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
12.2 This clause shall remain in force for a period of five years from the date of the Contract.
12.3 The Distributor shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
12.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provisions of clause 15.
13. Processing of personal data
13.1 The parties agree that the Distributor is a Controller and that OSKA is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Distributor shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Distributor shall ensure all instructions given by it to OSKA in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
13.2 OSKA shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
13.3 OSKA shall:
13.3.1 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 Distributor of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
13.4 Taking into account the state of technical development and the nature of processing, OSKA 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.
13.5 OSKA 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 Distributor.
13.6 The Distributor authorises the appointment of OSKA’s third party carriers of the Products as Sub-Processors.
13.7 OSKA shall (at the Distributor’s cost):
13.7.1 assist the Distributor in ensuring compliance with the Distributor’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 OSKA; and
13.7.2 taking into account the nature of the processing, assist the Distributor (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Distributor’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.
13.8 OSKA 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 Distributor.
13.9 OSKA shall, in accordance with Data Protection Laws, make available to the Distributor such information that is in its possession or control as is necessary to demonstrate OSKA’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 Distributor (at the Distributor’s cost) for this purpose.
14. 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.
15.1 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.
15.2 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;
15.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of OSKA at any time up to the date of termination.
16. Complaints procedure
16.1 In the event the Distributor has any complaint or similar issue arising out of or in connection with the Contract, such complaint shall be dealt with in accordance with OSKA’s Complaints Procedure.
17.1 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:
17.1.1 by hand: on receipt of a signature at the time of delivery;
17.1.2 by Signed For post: at 9.00 am on the second Business Day after posting; and
17.1.3 by email: on receipt of a delivery receipt email from the correct address.
18. Entire agreement
18.1 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.
18.2 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.
18.3 Nothing in these Terms purports to limit or exclude any liability for fraud.
19.1 The Distributor may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without OSKA’s prior written consent.
19.2 Notwithstanding clause 21.1, the Distributor may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives OSKA prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Distributor acknowledges and agrees that any act or omission of its Affiliate in relation to the Distributor’s rights or obligations under the Contract shall be deemed to be an act or omission of the Distributor itself.
20. Set off
20.1 OSKA shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Distributor under the Contract or under any other contract which OSKA has with the Distributor.
20.2 The Distributor shall pay all sums that it owes to OSKA under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
21. 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.
22.1 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.
22.2 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.
23.1 No failure, delay or omission by OSKA 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.
23.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by OSKA shall prevent any future exercise of it or the exercise of any other right, power or remedy by OSKA.
24. Compliance with law
The Distributor 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.
25. 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.
26. Costs and expenses
The Distributor 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).
27. Third party rights
27.1 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.
27.2 Any Affiliate of OSKA 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.
28. 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.
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).
30.1 In these Terms:
means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
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;
means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
means OSKA’s terms and Terms of sale set out in this document;
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 Distributor in performing its obligations under, or otherwise pursuant to the Contract;
means the agreement between OSKA and the Distributor for the sale and purchase of the Deliverables incorporating these Terms and the Order;
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;
shall have the meaning given in applicable Data Protection Laws from time to time;
means the person who purchases the Deliverables from OSKA and whose details are set out in the Order;
Data Protection Laws
means, as binding on either party or the Services:
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;
shall have the meaning in applicable Data Protection Laws from time to time;
means the Products or Services or both as the case may be;
means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract;
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;
means the address for delivery of the Products and performance of the Services as set out in the Order;
Modern Slavery Policy
means OSKA’s anti-slavery and human trafficking policy in force and notified to the Distributor from time to time;
has the meaning given in clause 11.1.1;
Normal Working Hours
means the hours of 0830 to 1700 (inclusive) on Monday – Friday (except Bank Holidays);
means the Distributor’s order for the Deliverables as set out in OSKA’s order acknowledgement form;
means OSKA Care Limited, company number 08587487, registered office Edward House, 5 Penner Road, Havant, Hampshire, PO9 1QZ;
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;
has the meaning given in clause 2.1;
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);
has the meaning given to it in applicable Data Protection Laws from time to time;
means the products and related accessories set out in the Order and to be supplied by OSKA to the Distributor;
means Personal Data received from or on behalf of the Distributor in connection with the performance of OSKA’s obligations under the Contract;
means the description or specification of the Deliverables set out or referred to in the Order;
means any agent, subcontractor or other third party (excluding its employees) engaged by OSKA for carrying out any processing activities on behalf of the Distributor in respect of the Protected Data;
means OSKA’s standard terms of business set out in this document;
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; and
means the period of warranty specified for the relevant Product in OSKA’s on-line catalogue and in the relevant user manual, which period commences with the Delivery date.
30.2 In these Terms, unless the context otherwise requires:
30.2.1 any clause or heading in these Terms are included for convenience only and shall have no effect on the interpretation of these Terms;
30.2.2 a reference to a ‘party’ means either OSKA or the Distributor and includes that party’s personal representatives, successors and permitted assigns; and
30.2.3 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.