Terms and conditions of sale

 1 INTRODUCTION 

1.1. Company details Merz Aesthetics UK Limited (company number 14506945) (“Supplier” “we”, “us”, “our”) is a company registered in England and Wales and our registered office is at Ground Floor Suite B, Breakspear Park, Breakspear Way, Hemel Hempstead, Hertfordshire, HP2 4TZ, United Kingdom. Our VAT numbers are GB436860769 and IE4102028EH. We operate the website https://merz-aesthetics.co.uk/ (“Website”). 

1.2. Contacting us. To contact us please email our customer service team at virtualenquiries@merz.com. 

1.3. Language. These Conditions and the Contract are made only in the English language. 

1 INTERPRETATION 

In these Conditions: 

“Business Day” means any day (other than a Saturday or Sunday or public holiday) when banks in London are open for business. 

“Conditions” means the terms and conditions set out in this Schedule 2 as amended from time to time. 

“Customer” means the Customer as defined in the letter to which these Conditions are appended. 

“Data Protection Legislation” means the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018, the UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as applicable) and any other relevant local laws relating to the protection of Personal Data, the privacy of individuals and the privacy of electronic communications. 

“Force Majeure” means an event or circumstance beyond a party’s reasonable control. 

“Order” means the Customer’s order for the Products, as set out in the Customer’s written acceptance of the Supplier’s quotation, the Customer’s purchase order form, or overleaf, as the case may be. 

“Products” means the products as set out in these Conditions and/or the Order. 

“Supplier” means Merz as defined in the Letter to which these Conditions are appended. 

“UK GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018. 

 

2 BASIS OF CONTRACT 

2.1 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable requirements submitted by the Customer are complete and accurate. 

2.2 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point a contract for such Order shall come into existence. 

2.3 Any sales literature, price lists, samples or other advertising produced by the Supplier are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of these Conditions or any Order nor have any contractual force. 

2.4 A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue. 

 

3 PRODUCTS 

3.1 The Products are described in the Supplier’s sales literature, price list and product documentation. The Products will be supplied in the minimum units (or multiples) stated in the Supplier’s price list or in a multiple of the sale outer, as specified. Orders received for quantities other than as specified will be adjusted by Supplier accordingly before despatch. 

3.2 The Supplier reserves the right to amend the specification of the Products if required for safety purposes or other statutory or regulatory requirements. 

 

4 DELIVERY 

4.1 The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree (“Delivery Location”). 

4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products. 

4.3 Delivery is completed on completion of unloading the Products at the Delivery Location. 

4.4 If the Customer fails to take delivery of the Products on the applicable delivery date and/or fails to provide any instructions, documents, licences, consents or authorisations (as applicable) to enable the Products to be delivered on that date, then, except where such failure or delay is caused by a Force Majeure event or the Supplier’s failure to comply with its obligations under these Conditions: 

4.4.1 delivery of the Products shall be deemed to have taken place and the Supplier shall be entitled to invoice the Customer for such Order; and 

4.4.2 the Supplier shall be entitled to store the Products until delivery takes place and charge the Customer for all related costs and expenses (including insurance). 

4.5 If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products. 

4.6 The Supplier may deliver the Products in instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 

 

5 QUALITY 

5.1 The Customer shall inspect the Products on delivery. Subject to paragraph 5.2, if: 

5.1.1 the Customer gives notice in writing to the Supplier within ten (10) Business Days of discovery that some or all of the Products are defective; and 

5.1.2 the Supplier is given a reasonable opportunity of examining such Products; and 

5.1.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Supplier’s cost, the Supplier, shall at its option, repair or replace the defective Products, or refund the price of the defective Products in full. 

5.2 The Supplier shall not be liable for any defect in the Products set out in paragraph 5.1 in any of the following events: 

5.2.1 the Customer makes any use of such Products after giving notice in accordance with paragraph 5.1; 

5.2.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use and maintenance of the Products; 

5.2.3 the defect arises as a result of the Supplier following the Order or descriptions of the Products specified by the Customer; 

5.2.4 the Customer alters or attempts to repair such Products without the written consent of the Supplier; 

5.2.5 the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions of the Customer; or 

5.2.6 the Products differ from their description as a result of changes made to ensure they comply with applicable safety, statutory or regulatory requirements. 

5.3 Except as set out in this paragraph 5, the Supplier shall have no liability to the Customer in respect of any defective Products. 

 

6 TITLE AND RISK 

6.1 Risk in the Products delivered to the Customer shall pass to the Customer on completion of delivery of such Products. 

6.2 Title to the Products delivered to the Customer shall not pass to the Customer until the Supplier has received payment in full for all outstanding sums for the Products. 

6.3 Until title to the Products has passed to the Customer, the Customer shall: 

6.3.1 hold the Products on a fiduciary basis as the Supplier’s bailee; 

6.3.2 store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; 

6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Products; 

6.3.4 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and 

6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in paragraph 8.1.3 below, but Customer may use the Products in the ordinary course of its business. 

6.4 If, before title to the Products passes to the Customer, the Customer becomes subject to any of the events listed in paragraph 8.1.3 below, or the Supplier reasonably believes that any such event is about to happen and notifies the Supplier accordingly, then, provided that the Products have not been resold, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them. 

 

7 PRICE AND PAYMENT 

7.1 The price of the Products shall be the price set out in the Order (as applicable), or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery. 

7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs), or any request by the Customer to change the delivery date(s), quantities or types of Products ordered or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions. 

7.3 The price of the Products: 

7.3.1 excludes amounts in respect of value added tax (“VAT”), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and 

7.3.2 excludes the costs and charges of packaging, insurance and transport of the Products, which may be invoiced to the Customer. 

7.4 The Supplier may invoice the Customer for the Products on or at any time after the completion of delivery. 

7.5 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier, or as otherwise specified on the invoice. Time of payment is of the essence. 

7.6 If the Customer fails to make any payment due to the Supplier under these Conditions by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 3% per annum above Barclays Bank plc base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. 

7.7 The Customer shall pay all amounts due under these Conditions in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may 

have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer. 

 

8 TERMINATION 

8.1 Without limiting its other rights or remedies, the Supplier may terminate any order or any agreement for the sale of goods with immediate effect by giving written notice to the Customer if: 

8.1.1 the Customer commits a material breach of any term of these Conditions and (if such a breach is remediable) fails to remedy that breach within give 14 days of that party being notified in writing to do so; 

8.1.2 the Customer fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or 

8.1.3 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business. 

8.2 On termination of any applicable order or agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest. 

8.3 Termination shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of these Conditions that existed at or before the date of termination. 

 

9 LIABILITY 

9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (iv) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability. 

9.2 Subject to paragraph 9.1: 

9.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with these Conditions; and 

9.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with these Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid to the supplier by the Customer in respect of the Products under these Conditions. 

10 GENERAL 

10.1 These Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 

10.2 The parties agree that any condition, warranty representation or other term which might otherwise be implied into or incorporated in these Conditions, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law. 

10.3 Neither party will be liable for any delay in performing its obligations under these Conditions if that delay is caused by a Force Majeure event and the party affected will be entitled to a reasonable extension of time for the performance of its obligations. 

10.4 All notices to be given under these Conditions must be in writing (which shall include email) and sent to the address of the recipient set out in these Conditions, or any other address which the recipient may tell the other in writing. 

10.5 Each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to resolve any controversy or claim of whatever nature arising out of or relating to these Conditions or breach thereof, and that the laws of England shall govern such controversy or claim. 

DATA PROTECTION 

11.1 Capitalised terms set out in this clause and not defined elsewhere in the agreement shall have the meaning given to them in the Data Protection Legislation. 

11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In addition Merz will process personal data in accordance with its data Privacy Policy at https://www.merztherapeutics.com/uk/privacy-policy/ 

11.3 If Merz acquires, in the course of the provision of this Agreement, any personal data relating to any of the Personnel of the Customer or any other individual, patient or otherwise (“Customer Personal Data”), Merz acknowledge that for the purpose of the Data Protection Legislation, Merz is the Data Controller. 

11.4 Clause 11.10 sets out the scope, nature and purpose of processing by Merz, the duration of the processing, the types of Personal Data and categories of Data Subject. 

11.5 Without prejudice to the generality of clause 10.2 of this clause, Merz will ensure that it has all necessary appropriate consents and notices in place to enable lawful processing of the Customer Personal Data for the duration and purposes of this agreement. 

11.6 Without prejudice to the generality of clause 10.2 of this clause, Merz shall, in relation to any Personal Data processed on Customer’s behalf in connection with this agreement: 

11.6.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; 

11.6.3 ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential; 

11.6.4 assist the Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with Merz’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with Supervisory Authorities or regulators; 

11.6.5 notify Customer without undue delay on becoming aware of a Personal Data breach; 

11.6.6 immediately notify Customer where Merz is aware that Customer’s Processing instructions infringe the Data Protection Legislation or any other applicable law (unless prevented from doing so by applicable law) and not carry out the relevant Processing; 

11.6.7 at Customer’s written direction, delete or return Personal Data and copies thereof to Customer on termination of the agreement unless required otherwise by Applicable Laws to store the Personal Data; and 

11.6.8 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for reasonable audits by Customer or Customer’s designated auditor. 

11.7 Merz shall not subcontract any processing of the Personal Data to a third party subprocessor without the prior written approval of Customer, with the exception of the existing subprocessors in place at time of this agreement and available upon request, including credit reference agencies, banks, credit insurers, shipping service providers (DHL) and other responsible organisations outside your business and other affiliates in the Merz Global group of companies 

11.8 Where Customer approves the appointment: 

11.8.1 Merz imposes data protection terms on any subprocessor it appoints that protect the Personal Data to the same standard provided for by this Agreement and which complies with the Data Protection Legislation; and 

11.9 Merz shall not transfer the Personal Data (nor permit the Data to be transferred) outside of the UK or the European Economic Area (“EEA”), with the exception of to the agreed subprocessors, who are available on request. Where transfers of Personal Data are outside of the UK or the EEA, they will be subject to the appropriate safeguards 

11.10 Processing particulars: 

11.10.1 Scope: as part of the provision of Product fulfilment as set out in this agreement. 

11.10.2 Nature: in order to provide the terms of this agreement. 

11.10.3 Purpose of Processing: In order to fulfil its obligations under this agreement and to provide Customer with the Products purchased as set out in this agreement. 

11.10.4 Duration of Processing: For the duration of this agreement. 

11.10.5 Types of Personal Data: Name, email address and phone number. 

11.10.6 Categories of Data Subject: Customers of Merz. 

M-MA-UKI-3121 – Date of Preparation September 2023

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