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1. Interpretation

1.1 In these Conditions:

“Business Day” means a day (other than a Saturday, Sunday or public holiday).

“Buyer” means the person, firm or company authorised to purchase Goods or Services from the Seller.

“Conditions” means the standard terms and conditions of sale set out in this document as amended from time to time in accordance with clause 14.1.

“Contract” means a contract between the Seller and the Buyer for the purchase and sale of Goods or Services in accordance with these Conditions.

“Force Majeure Event” has the meaning given to it in clause 11.1.

“Goods” means goods and services supplied or agreed to be supplied by the Seller to the Buyer under a Contract.

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.

“Order” an order for Goods submitted by the Buyer in accordance with clause 2.

“Seller” means PHARMACENTRAL, a company registered in DELAWARE, United States of America.

“Specification” means any specification for the Goods that is agreed in writing by the Buyer and the Seller.

“VAT” means Value Added Tax or any equivalent or replacement tax.

1.2 A reference to “writing” or “written” includes faxes, emails and electronic data interchange (EDI).

1.3 A reference to a statue or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.4 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Formation of Contract and Basis of Sale

2.1 The Seller shall sell and the Buyer shall purchase Goods in accordance with and on the basis of these Conditions which shall govern a Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.

2.2 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise any quotation at any time prior to the Seller’s acceptance of the Buyer’s Order. The Seller is not obliged to accept any Order which the Buyer places with the Seller.

2.3 An Order constitutes an offer by the Buyer to purchase Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.4 Each Order shall:

  • (a) be given in writing or, if given orally, shall be confirmed in writing within two Business Days;
  • (b) specify the type and quantity of Goods ordered and the Goods’ or Services’ code numbers; and
  • (c) specify the date on which the Order is to be ready for collection (the “Goods Issue Date”) which shall be at least five Business Days after the date of deemed receipt of the Order by the Seller. If the Issue Date is to be specified after the placing of an Order, the Buyer shall give the Seller reasonable advance notice of the relevant information.

2.5 A Contract shall be formed when acceptance of the Buyer’s Order is confirmed in writing by the Seller or when the Goods are delivered by the Seller in accordance with an Order.

2.6 The Seller reserves the right to decline, alter, or cancel an Order which has been accepted by the Seller at any time in accordance with the Conditions.

3. Goods and the Price

3.1 The Goods are described in the Seller’s quotation or sales literature as modified by the Specification. The Seller reserves the right to change the Specification of the Goods or Services if required by any applicable statutory or regulatory requirements.

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Seller against, and covenant to pay a sum equal to, all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Seller’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

3.4 The price of the Goods shall be the price set out in the Order, or, if no such price is specified, the Seller’s price for the Goods in force on the Goods Issue Date. The Buyer shall notify the Seller in writing of any disagreement with the price invoiced within 30 Business Days of the date of the invoice in question.

3.5 The Seller may, without giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

  • (a) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  • (b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification;
  • (c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
  • (d) any other reasons, defined or indeterminate.

3.6 All prices quoted by the Seller are, unless stated otherwise, exclusive of VAT and all other applicable taxes and duties and the costs and charges of transport, packing and insurance, which shall be payable by the Buyer.

3.7 If the Seller notifies the Buyer that the packing cases, pallets, containers, industrial pallecons and other packaging used are returnable, the Buyer will be charged for such packaging at the Seller’s current prices unless the packaging materials are returned to the Seller’s designated warehouse carriage paid and in good condition within 20 Business Days of their despatch to the Buyer or, in the case of industrial pallecons, when fully empty.

4. Payment

4.1 The Seller shall invoice the Buyer for the price of Goods and any transport, packaging, insurance, VAT and other charges payable on or at any time after the Goods Issue Date, in a suitable currency.

4.2 The Buyer shall make payment of any amount invoiced by the Seller in full and in cleared in the named currency to the bank account nominated in writing by the Seller no later than the 15th day of the month following the month the invoice was dated unless otherwise agreed by the parties in writing.

4.3 All amounts due under a Contract shall be paid in full by the Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.

4.4 Time for payment shall be of the essence of the Contract. If the Buyer fails, on the due date, to pay any sum due to the Seller under any Contract then, without prejudice to any other right or remedy available to the Seller, the Seller shall (at its option) be entitled:

  • (a) to declare that all outstanding balances payable by the Buyer are immediately due, where upon they shall become immediately due and payable;
  • (b) to suspend performance of the Contract until payment of all sums due to the Seller is made in full;
  • (c) terminate the Contract immediately without further written notice; and
  • (d) to charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of five per cent per annum above prevailing base lending rate from time to time which shall accrue on a daily basis from the date payment was due until payment in full is made.

4.5 If the Buyer applies to the Seller for a credit account, the Buyer acknowledges and agrees that (i) the Seller may undertake a search with a credit reference agency before accepting the Buyer’s credit application and may make enquiries about the Buyer’s principal directors; (ii) the credit reference agency may record these searches; and (iii) the Seller shall monitor and record information relating to the Buyer’s trade credit performance and such records shall be made available to credit reference agencies and other organisations to assess applications for credit.

5. Delivery

5.1 The Buyer shall collect the Goods from such of the Seller’s premises as is notified to the Buyer in writing (the “Delivery Location”) within three Business Days of the Seller notifying the Buyer that the Goods or Services are ready. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location and on delivery, the Buyer or its representative will be required to sign a delivery form acknowledging receipt of the Goods and to examine the Goods.

5.2 Any dates quoted by the Seller for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused and time for delivery shall not be of the essence.

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

5.4 The Seller may deliver the Goods by instalments and each instalment shall constitute a separate Contract, which shall be invoiced and paid for separately. Delivery by the Seller of any of the instalments other than in accordance with these Conditions shall not entitle the Buyer to cancel any other instalments or treat the Contract as a whole as repudiated.

5.5 If the Buyer fails to take delivery of the Goods at the time stated for delivery (otherwise than by reason of the Seller’s fault) or fails to give the Seller adequate delivery instructions then, without prejudice to any other right or remedy available to the Seller, the Seller may:

  • (a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including handling and insurance) of storage; or
  • (b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the total amount payable by the Buyer under the Contract or charge the Buyer for any shortfall below the total amount payable by the Buyer under the Contract.

5.6 Notwithstanding any other ground which the Buyer may have to reject those Goods which the Seller delivered, the Buyer shall not be entitled to reject them solely on the grounds that not all the Goods ordered were delivered.

5.7 The Seller shall attempt to notify the Buyer as soon as is practicable but not later than 365 days after the order if the Seller becomes aware that the Seller will not be able to deliver the Goods or any part of them.

6. Risk and Title

6.1 The risk of loss and damage to the Goods shall pass to the Buyer on delivery.

6.2 Notwithstanding delivery and the passing of risk in the Goods, title to the Goods shall not pass to the Buyer and shall remain in the Seller until the Buyer shall have paid to the Seller in full the price for the Goods together with any other sums due under any Contract.

6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

  • (a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
  • (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  • (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
  • (d) notify the Seller immediately if it becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(f); and
  • (e) give the Seller such information relating to the Goods as the Seller may require from time to time.

6.4 The Seller reserves the immediate right of repossession of any Goods which have not been paid for to which the Seller has retained title as aforesaid exercisable at any time after delivery of the Goods and the Buyer hereby grants an irrevocable right and licence to the Seller’s employees, agents and contractors to enter upon all or any premises where the Goods are stored without prior notice for this purpose.

7. Warranties

7.1 The Seller warrants that on delivery the Goods will be of satisfactory quality (within the meaning of the applicable Sale of Goods Acts) and will correspond in all material respects with the Specification for the Goods at the time of delivery.

7.2 Subject to clause 7.3, if:

  • (a) the Buyer gives notice in writing to the Seller within five Business Days of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1 and in any event within 10 Business Days of delivery of the Goods;
  • (b) the Seller is given a reasonable opportunity of examining such Goods; and
  • the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost, the Seller shall, at its option, repair or replace the defective Goods (or any part(s) of the Goods) or refund the price of the defective Goods in full.

7.3 The Seller shall not be liable for Good’s failure to comply with the warranty set out in clause 7.1 in any of the following events:

  • (a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 7.2;
  • (b) the defect arises because the Buyer failed to follow any regulatory requests or the Seller’s oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
  • (c) the Buyer alters or repairs such Goods without the written consent of the Seller;
  • (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
  • (e) the Goods differ from their Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
  • (f) the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer.

7.4 Except as provided in this clause 7, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.

7.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

7.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.

8. Limitation of Liability

8.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:

  • (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  • (b) fraud or fraudulent misrepresentation;
  • (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
  • (d) defective products under the Consumer Protection Act 1987;
  • (e) the Buyer’s indemnity in clause 3.2; or
  • (f) any matter in respect of which it would be unlawful for either party to exclude or restrict liability.

8.2 Subject to clause 8.1, the Seller shall not be liable to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

  • (a) loss of profits;
  • (b) loss of sales or business;
  • (c) loss of agreements or contracts;
  • (d) loss of anticipated savings;
  • (e) loss of or damage to goodwill; and
  • (f) any indirect or consequential loss.

8.3 Subject to clause 8.1 and 8.2, the Seller’s total liability to the Buyer arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 100% of the total price paid under the Contract to which the loss relates.

8.4 Notwithstanding clause 8.1, the losses for which the Seller assumes responsibility and which shall (subject to clause 8.2 and 8.3) be recoverable by the Buyer include:

  • sums paid by the Buyer to the Seller pursuant to the Contract in respect of any Goods not supplied in accordance with the terms of the Contract;
  • wasted expenditure;
  • reasonable additional costs of procuring replacement Goods;
  • losses incurred by the Buyer arising out of or in connection with any third party claims demands, fines, penalties, actions, investigations or proceedings, including those made or commenced by regulators or competent authorities against the Buyer caused by the act or omission of the Seller.
9. Compliance and Product Recall

9.1 The Buyer must notify the Seller in writing within five Business Days of receipt of a complaint regarding the Goods or any part of them, or any requirement for a product recall concerning the Goods from any regulatory authority.

9.2 In the event that the Seller or any regulatory authority implements a product recall campaign for the Goods, the Buyer will provide the Seller and the regulatory authority with all assistance of whatever nature which the Seller might require (including but not limited to tracing or notifying Buyers, withdrawing the Goods from sale, recalling the Goods and posting notices or placing advertisements) and the Seller will meet any reasonable expenses incurred by the Buyer but only where these have been agreed in advance and the Buyer has provided the Seller with such evidence substantiating the same as the Buyer may reasonably require.

9.3 The Buyer shall obtain all documents, licences and permissions of whatsoever nature as are necessary for due performance of the Contract and shall comply with all applicable laws and regulations in relation to the storage, packaging and sale of the Goods.

9.4 The Buyer shall comply with all instructions regarding the storage of the Goods including manufacturer’s recommendations and any instructions which the Seller gives the Buyer and the Seller shall not be liable for any deterioration in the Goods nor any other damage caused as a result of incorrect storage procedures.

9.5 It shall be the Buyer’s duty to keep the Seller fully and speedily informed as to any risks to health and safety of which the Buyer becomes aware in relation to the Goods.

10. Intellectual Property Rights

10.1 Notwithstanding delivery of and the passing of title in any Goods, nothing shall have the effect of granting or transferring to, or vesting in, the Buyer any Intellectual Property Rights in or to any Goods.

10.2 All Goods sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Seller and in no case may any trade mark other than those applied by the Seller be marked on or applied in relation to the Goods nor shall the packaging or any trade mark or registered design be altered or tampered with in any way.

11. Force Majeure

11.1 Force Majeure Event means any circumstance not within the Seller’s reasonable control including, without limitation:

  • (a) acts of God, flood, drought, earthquake or other natural disaster;
  • (b) epidemic or pandemic;
  • (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  • (d) nuclear, chemical or biological contamination or sonic boom;
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