CENTRAL PHARMA CONTRACT PACKING LIMITED
TERMS AND CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
1.1 In this Contract, unless the context otherwise requires, the following expressions have the following meanings:
“Affiliate” any entity that directly or indirectly ”controls”, or is ”controlled” by, or is under common ”control” with either Party, ”control” meaning the beneficial ownership of more than fifty per cent of the issued share capital of a company or other legal entity or the legal power to direct or cause the direction of the general management of the company or other legal entity, and ”controlled” shall be construed accordingly;
“Business Day” any day other than: (i) a Saturday; (ii) a Sunday; (iii) a day which is a bank holiday in England or (iv) a day when Central Pharma is not open for business;
“Central Pharma” Central Pharma Contract Packing Limited, a company incorporated and registered in England under company number 05666241, whose principal place of business and registered office are at Caxton Road, Elm Farm Industrial Estate, Bedford, Bedfordshire, MK41 0HT, England;
this “Contract” these Terms and Conditions and the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Quotation (if any) or from the Long Term Agreement (if any), or are not otherwise agreed by Central Pharma in writing);
“Customer” the customer of Central Pharma whose details may be more particularly set out in the relevant Order or the Long Term Agreement between the Parties;
“Event of Force Majeure” any event beyond the reasonable control of either Party including any act of God, actions or omissions of any third party which is not an Affiliate of the Party seeking to rely on Clause 10 (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, protests, rallies, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, national event (including death of a member of the Royal Family), terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workers (other than of the Party seeking to rely on Clause 10), unusual traffic volumes, closure or disruption to roads or transport or particular areas, epidemic or pandemic (including COVID-19), compulsory or recommended measures to avoid epidemic or pandemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation;
“Liability” liability in or for breach of contract (including liability under any indemnity), tort (whether deliberate or not), negligence, breach of statutory duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or unenforceability of any term of this Contract (and for the purposes of this definition, all references to “this Contract” shall be deemed to include any collateral contract, but each Order shall constitute a separate ”Contract”);
“Long Term Agreement” any written agreement entered into between the Parties governing the long term relationship concerning the supply of Products by Central Pharma to Customer, and which may be in the form of Customer’s agreement to proceed with placing an Order following Central Pharma’s written confirmation of the Parties’ overall relationship terms in response to Customer’s completed account application form, the terms of which agreement may be updated with immediate effect by Central Pharma informing Customer in writing of any variation to the same from time to time (and which terms are agreed by Customer’s conduct in proceeding with placing an Order following receipt of Central Pharma’s relevant written communication);
“Order” a request by Customer to Central Pharma for the provision of particular Products, which shall be in accordance with the terms of any corresponding or relevant Quotation or Long Term Agreement (if any);
“Party” either Central Pharma or Customer;
“Payment” has the meaning given to it in Clause 4.1;
“Price” the price payable by Customer to Central Pharma for the supply by Central Pharma of each unit of a Product, as stipulated or calculated in accordance with this Contract or any Long Term Agreement (or if no such price or basis is stipulated there, this shall be Central Pharma’s standard price for the relevant Product current at the date the Order is accepted by Central Pharma and Customer acknowledges that this may be an updated price since any previous Order);
“Product” any of Central Pharma’s products provided or to be provided by Central Pharma to Customer pursuant to this Contract;
“Quotation” a written quotation from Central Pharma to Customer detailing the Product(s) which Central Pharma is willing in principle and subject to contract to supply to Customer for a particular Order;
”Terms and Conditions” these terms and conditions of sale;
“United Kingdom” the United Kingdom of Great Britain and Northern Ireland, namely England, Scotland, Wales and Northern Ireland.
1.2 In this Contract:
1.2.1 references to Clauses are to clauses of these Terms and Conditions;
1.2.2 headings are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.2.3 words imparting the singular shall include the plural and vice versa;
1.2.4 words imparting a gender shall include the other gender and the neutral and references to ”persons” shall include an individual, company, corporation, firm or partnership;
1.2.5 where the words “include(s)”, “including” or “in particular” are used in this Contract, they are deemed to have the words “without limitation” following them;
1.2.6 any obligation in this Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce to that thing being done;
1.2.7 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.2.8 references to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 11) includes in electronic form.
2. CONTRACT
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. These Terms and Conditions apply to Central Pharma’s supply of all Products. The placement of any Order, the giving by Customer of any delivery instruction or the acceptance by Customer of delivery of the Products shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.2 This Contract (together with any documents referred to in it) constitutes the whole agreement and understanding of the Parties as to its subject matter and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Contract.
2.3 Save as expressly provided in this Contract, it (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Contract and in any way relating to the subject matter of this Contract. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Contract except as expressly stated in this Contract. Neither Party shall have any remedy in respect of any untrue statement made by the other Party upon which that Party relied in entering into this Contract (unless such untrue statement was made fraudulently or as to a fundamental matter) and that Party’s only remedies shall be for breach of contract as provided in this Contract.
2.4 Subject to Clause 2.3, all materials and other particulars furnished by Central Pharma to Customer prior to any Quotation or any Long Term Agreement, or in Central Pharma’s sales or marketing materials or other documents (including its catalogues, trade literature, brochures, price lists or website) or made orally by Central Pharma, are given for general information purposes only and Customer acknowledges that it is not entering into this Contract in reliance upon any such materials or other particulars (except to the extent that such materials or particulars form part of this Contract); and the Customer acknowledges that the Products may appear different from their representation in any such materials or particulars.
2.5 Customer shall submit each Order in writing (including electronically through such medium or third party as stipulated, permitted or made available by Central Pharma) or in any form, unless Central Pharma requires the Order to be in a particular form in which case Customer shall ensure that the Order is in that form.
2.6 Each Order placed by Customer with Central Pharma shall be deemed to be an offer to purchase the relevant Product(s) on the terms of this Contract. Subject to Clause 2.7, unless Central Pharma indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound on acceptance of the relevant Order by Central Pharma to Customer in writing.
2.7 Central Pharma may at any time before delivery (or collection by Customer, if permitted by Central Pharma) without Liability inform Customer that Central Pharma is cancelling or rejecting all or any part of the Order and terminating all or part of this Contract if the relevant Products are not in stock (or with the required shelf-life in accordance with this Contract) or need to be restricted by Central Pharma (in its absolute discretion) due to a shortage of supply or an Event of Force Majeure. If there is any cancellation or termination due to a shortage or supply restriction, Customer may place a subsequent Order (which will be a separate Contract if accepted by Central Pharma).
2.8 No change to this Contract shall be binding unless it is agreed in writing by both Parties or their authorised representatives.
2.9 In the event of any conflict between this Contract or any Long Term Agreement, then the Long Term Agreement will prevail, except to the extent otherwise expressly agreed by both Parties in writing.
2.10 Customer shall ensure that each Order contains full details of the Product(s) to be supplied, the quantity of each Product ordered, the identity of Customer and the requested delivery date. Any price or delivery requirement other than in accordance with this Contract is of no effect.
2.11 Customer shall ensure that all information supplied by it to Central Pharma in respect of each Order is complete and accurate. Customer shall be responsible for ensuring that each Order meets its particular requirements.
2.12 Any advice or recommendation given by or on behalf of Central Pharma to Customer as to storage, transport, application or use of the Products is for convenience only and unless confirmed in writing by an authorised representative of Central Pharma that it is binding on Central Pharma it shall be entirely at Customer’s own risk to follow any such advice or recommendation without Central Pharma owing any Liability to Customer. Customer is responsible for storing, transporting, handling, applying and using the Products in accordance with all applicable laws, regulations, byelaws and codes of practice.
2.13 Once accepted by Central Pharma each Order shall constitute a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
2.14 Unless otherwise expressly agreed between the Parties in writing, no contract shall be a sale by sample.
2.15 Central Pharma may charge Customer for sketches, plates, dies, moulds, tooling or samples delivered to Customer and Customer shall return any such item to Central Pharma upon demand unless legal title has passed to Customer and Customer shall keep confidential all design and other aspects of any such item.
2.16 Sketches, plates, dies, moulds, tooling and samples shall remain the property of Central Pharma unless otherwise stated in this Contract.
2.17 Central Pharma may dispose of any item, including tooling or machinery, used solely for the manufacture or production of any Products ordered by Customer if no Orders requiring use of such items are placed by Customer in any twelve-month period.
3. DELIVERY, RISK AND ADDITIONAL CUSTOMER OBLIGATIONS
3.1 Subject to Clauses 2.7, 3.2, 8.10 and 10, in consideration of the payment of the Price and any other sums due by Customer to Central Pharma under this Contract, Central Pharma shall use its reasonable endeavours to meet each Order for the Products placed by Customer in the quantities and by the agreed delivery date save that Central Pharma shall not breach this Contract if the quantity of any Product supplied to Customer pursuant to an Order is at least ninety per cent (90%) and no more than one-hundred-and-ten per cent (110%) of the quantity stipulated in the relevant Order.
3.2 Central Pharma reserves the right to delay delivery or cancel an Order if the amount owing by Customer to Central Pharma under all contracts between the Parties (including under this Contract) exceeds any credit limit for credit extended by Central Pharma to Customer from time to time or if any payment due from Customer to Central Pharma has not yet been made. Central Pharma may update the credit limit with immediate effect by informing Customer in writing from time to time.
3.3 Any timeframe for delivery in a previous contract shall not be an indication of the timeframe for delivery in this Contract.
3.4 For UK Deliveries, Central Pharma shall usually deliver the Products within the timeframe set out in this Contract or as otherwise reasonably stipulated by Central Pharma, from acceptance of an Order (although this may vary depending on peak times, deliveries to remote areas and the availability of any third party carrier which Central Pharma utilises for the provision of its deliveries).
3.5 For Export Deliveries, Central Pharma shall inform Customer when the Products will be ready for receipt or collection. Customer shall ensure that it is ready to receive or collect the Products at the times reasonably stipulated by Central Pharma.
3.6 Where this Contract provides for collection of the Products by Customer from Central Pharma, if Customer does not collect the Products at the date and time stipulated by Central Pharma, (without prejudice to any other right or remedy available to it) Central Pharma will be entitled to charge Customer for Central Pharma’s storage fees at its then prevailing storage rates and for Central Pharma’s other reasonable relevant costs and expenses.
3.7 If this Contract provides for stock holding of any Product by Central Pharma on behalf of Customer, where no movement of stock has been required by Customer for a period of no less than 30 days, Central Pharma will be entitled to require Customer to take immediate delivery of and to make full Payment for all outstanding stock, and if such Payment becomes overdue Central Pharma will be entitled to scrap or otherwise deal with the stock in its absolute discretion and Customer shall promptly reimburse Central Pharma for its related costs and expenses.
3.8 Unless otherwise agreed by the Parties in writing, Central Pharma’s delivery of the Products to Customer shall take place between 9 a.m. and 5 p.m. on a Business Day.
3.9 The packaging of the Products shall be in accordance with Central Pharma’s customary practices, suitable for anticipated transport conditions for arrival with Customer so that the Products are not damaged or contaminated and with leaflets and labels in English. Customer shall be responsible for ensuring that it carries out any re-labelling or repackaging in accordance with all applicable laws, regulations, byelaws and codes of practice. If Customer wishes to place a special request for packaging this will subject to Central Pharma’s prior written agreement and Customer shall pay Central Pharma for the corresponding extra costs.
3.10 Partial delivery or performance by Central Pharma shall be permitted. Central Pharma may deliver and provide the Products in instalments. Unless the Parties otherwise agree in writing, Central Pharma may invoice Customer for each instalment of the Products.
3.11 Delay, default or non-delivery of any instalment by Central Pharma shall not entitle Customer to cancel or terminate, and shall not affect, the remainder of this Contract. Time shall not be of the essence in respect of the delivery of the Products.
3.12 Unless otherwise agreed in writing by the Parties, Central Pharma shall deliver the Products to Customer Ex Works (Incoterms 2020) at a location nominated by Central Pharma in the United Kingdom.
3.13 If there is any conflict between the provisions of Incoterms 2020 and this Contract, this Contract shall prevail.
3.14 Where Central Pharma delivers other than Ex Works (Incoterms 2020), Central Pharma may either use its own drivers or a third party carrier selected by Central Pharma. Central Pharma shall charge Customer a handling and delivery fee (in the amount stipulated to Customer from time to time), which fee Central Pharma may waive where the Order exceeds Central Pharma’s then current threshold for handling and delivery costs being charged.
3.15 Where Central Pharma delivers the Products to Customer’s (or its customer’s or courier’s) premises, Central Pharma shall offload the Products at the nearest entrance to the delivery address and at ground floor level only. It is Customer’s responsibility to move or transfer the Products from that point to any other part of the delivery address or destination. Customer shall provide or procure the provision of Central Pharma’s delivery vehicle with reasonable access to park and deliver, or give Central Pharma sufficient notice for reasonable arrangements for making deliveries.
3.16 Customer shall sign, or shall procure that its courier or other agent signs, a delivery note and other documentation upon receipt of the Products. The signing of any such documentation shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation. Customer shall inspect or shall require its courier or other agent to inspect the Products and their packaging for any obvious damage (including breakages) and make a note of any obvious damage when signing.
3.17 All risk in the Products shall pass to Customer upon delivery, provided that where delivery is delayed due to breach by Customer of its obligations under this Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.18 Unless otherwise agreed in writing by the Parties, Customer shall keep the Products fully insured on Central Pharma’s behalf with a reputable insurance company to the reasonable satisfaction of Central Pharma for their full price against all risks of loss or damage from the time when the risk passes to Customer until title passes in accordance with Clause 4. On request, Customer shall produce the policy of insurance to Central Pharma. If the Products are lost, damaged or destroyed, Customer shall hold the proceeds of insurance for and to the order of Central Pharma pending Payment.
3.19 For Export Deliveries, Customer shall be responsible for complying with all applicable laws, regulations and codes of practice governing the importation and use of the Products in the destination country, and for paying any import and export duties or levies.
3.20 Before delivery of the Products, Central Pharma shall:
3.20.1 use adequate facilities for performing its activities under this Contract, including the manufacture and storage of the Products;
3.20.2 observe all applicable laws, regulations, byelaws and codes of practice in respect of the manufacture, sale, supply, storage, packaging, labelling and transportation of the Products from Central Pharma to Customer, as are applicable in Central Pharma’s place of manufacture or supply;
3.20.3 obtain and pay for and at all times maintain and comply with and conform to, all necessary or desirable licences, authorisations (including manufacturing authorisations), approvals, consents, permissions and certificates of origin required for the manufacture, storage, sale and supply of the Products as are applicable in Central Pharma’s place of manufacture or supply;
3.20.4 keep all inventory, stocks and supplies of the Products in conditions appropriate for their storage (including, where applicable, temperature controlled) and to avoid deterioration and contamination; and
3.20.5 on or before delivery of the Products to Customer check the Products in accordance with its regulatory requirements.
3.21 From delivery of the Products, Customer shall:
3.21.1 use adequate facilities for receipt and use of the Products, and handle and store the Products in accordance with Central Pharma’s (or the manufacturer’s) instructions or requirements;
3.21.2 observe all applicable laws, regulations, byelaws and codes of practice in respect of the use, sale, supply, storage, export, import and transportation of the Products, as are applicable from the place of receipt to Customer’s (or its customer’s) location;
3.21.3 obtain and pay for and at all times maintain and comply with and conform to, all necessary or desirable licences, authorisations (including marketing authorisations), approvals, consents, permissions and certificates of origin required for the use, sale, supply, storage, export, import and transportation of the Products;
3.21.4 keep all inventory, stocks and supplies of the Products in conditions appropriate for their storage (including, where applicable, temperature controlled) and to avoid deterioration and contamination; and
3.21.5 on or before delivery of the Products to Customer’s customer or a carrier check the Products in accordance with its regulatory requirements and give them adequate advice and information as to the handling and storage of the Products.
3.22 Customer warrants and undertakes to Central Pharma that it is a party to this Contract and not acting as agent for any third party for the purposes of this Contract.
4. TITLE
4.1 Notwithstanding delivery, title to and ownership of the Products shall not pass to Customer until Central Pharma has received in full (in cleared funds) all sums due to it in respect of:
4.1.1 the Products; and
4.1.2 all other sums which are or which become due to Central Pharma from Customer on any account;
(“Payment“).
4.2 Until Payment, Customer shall:
4.2.1 hold the Products on a fiduciary basis as Central Pharma’s bailee;
4.2.2 hold the Products in good, saleable condition;
4.2.3 keep an up-to-date list of the location of Central Pharma’s property and present this to Central Pharma upon request;
4.2.4 store the Products separately from other goods or in any way so that they remain readily identifiable as Central Pharma’s property; and
4.2.5 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products.
4.3 Customer may resell the Products before Payment solely on the following conditions:
4.3.1 any sale shall be effected in the ordinary course of Customer’s business at full market value;
4.3.2 any such sale shall be a sale of Central Pharma’s property on Customer’s own behalf and Customer shall deal as principal when making such a sale;
4.3.3 Customer shall keep the proceeds of sale separate from any money or property of Customer or third parties; and
4.3.4 Customer shall remain responsible for paying Central Pharma to the full value of the Payment. If Central Pharma requires, Customer shall authorise and direct such third party buyer to pay to Central Pharma a like part of the sum due to Customer in respect of the Products sold and assign to Central Pharma such part of the debt owed to Customer by the third party.
4.4 Central Pharma may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of Central Pharma. Central Pharma may also require Customer at Customer’s cost, within three days of Central Pharma’s request, to deliver up to Central Pharma or make available to Central Pharma for collection from a single accessible collection point as Central Pharma requires all Products which are the property of Central Pharma. Customer hereby grants to Central Pharma for Central Pharma and its agents, staff, officers, employees and contractors an irrevocable licence to enter for the purpose of recovering possession of the Products any premises then occupied by or in the ownership or possession of Customer or Customer’s customer. Customer shall indemnify Central Pharma against all claims, losses, damages, liabilities, costs and expenses incurred by Central Pharma in exercising its rights under this Clause 4.4.
4.5 Central Pharma shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Central Pharma.
4.6 On termination or expiry of this Contract, howsoever arising, Central Pharma’s rights contained in this Clause 4 shall remain in force and effect.
5. WARRANTY
5.1 Subject to the other provisions of this Clause 5, Central Pharma warrants that, as at delivery, the Products shall be undamaged, free from material defects, have at least the minimum shelf-life stipulated by Central Pharma (which shall be a minimum of 70% of the initial unexpired shelf-life at the date of delivery, unless Central Pharma designates anything to the contrary in writing), and conform to the description of the Product in this Contract or stated by Central Pharma in writing for that Product.
5.2 Customer shall ensure that its appropriate representative checks the Products for obvious damage on delivery.
5.3 Subject to Clause 5.5, as Customer’s sole remedy, Central Pharma shall at its option, within a reasonable timeframe:
5.3.1 replace;
5.3.2 repay an appropriate portion of the purchase price of; or
5.3.3 provide a credit note in respect of a reasonable part of; any delivered Products which are not in conformance with the warranty set out in Clause 5.1.
5.4 Central Pharma shall have no Liability for providing Products to the extent caused by Central Pharma’s compliance with and reliance on Customer’s instructions or requirements or Central Pharma’s compliance with any relevant laws, regulations or guidelines.
5.5 Central Pharma’s Liability for defective or damaged Products is subject to:
5.5.1 Customer informing Central Pharma in writing of any claim promptly upon discovery of the defect or damage and in any event: (i) in respect of a defect which is apparent from a visual inspection within seven days of delivery and (ii) in respect of a latent defect which is not apparent from a visual inspection within seven days of Customer discovering the defect (other than anything that involves potential danger to health or for Products requiring temperature controlled storage, in which case it shall be no more than one Business Day), specifying with reasonable detail the way in which it is alleged that the relevant Products do not conform with the requirements of this Contract;
5.5.2 Customer allowing Central Pharma to take control over all decisions in respect of dealing with the issue including with third parties;
5.5.3 Customer having provided Central Pharma with Central Pharma’s delivery note number and such other information and documentation as Central Pharma reasonably requires at the same time as the written information specified in Clause 5.5.1;
5.5.4 Customer showing to Central Pharma’s reasonable satisfaction that the defect or damage is solely attributable to Central Pharma’s (or Central Pharma’s subcontractors’) defective materials or workmanship and not: (i) from normal use; or (ii) any acts or omissions by anyone after delivery by Central Pharma (including Customer’s carrier);
5.5.5 the Products having not been: (i) misused or subjected to neglect, improper or inadequate care or carelessness (including subject to wrong storage conditions or open to contamination); or (ii) dealt with, used or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of Central Pharma; or (iii) adversely affected by anything done or not done after the Products had been delivered by Central Pharma (including any accident or attempt at alteration, change or modification or inspection);
5.5.6 Customer holding the Products safely and securely in good condition;
5.5.7 Customer allowing and procuring for Central Pharma and Central Pharma’s representatives the opportunity to have access to and inspect the Products;
5.5.8 Customer having paid Central Pharma for the relevant Products on time and in full; and
5.5.9 if and to the extent Central Pharma requests, at Central Pharma’s option, within five Business Days of Customer informing Central Pharma of the defective or damaged Products, Customer returning such Products (unless Central Pharma expressly confirms in writing to collect such Products) carriage and insurance paid at Customer’s risk to Central Pharma’s premises or to such other location stipulated by Central Pharma and carefully packed to avoid damage in transit. Unless and until Central Pharma inspects, repairs or receives the relevant Products, Customer shall hold such Products safely and securely in good condition.
5.6 If the Parties disagree as to the compliance of any Products with the warranty in Clause 5.1, the Parties agree to have the relevant Products tested by an independent expert chosen by the Parties or by an independent third party body selected by Central Pharma in its absolute discretion if the Parties are unable to agree on the choice of expert within fourteen days of one Party informing the other Party in writing that it wishes to make a referral. The independent laboratory shall act as an expert and not as an arbitrator. The independent laboratory’s decision shall be final and binding, and, except in the case of manifest error, not subject to appeal. The Party who was in error shall bear all the costs of the analysis procedure and the laboratory. If the independent laboratory finds in Customer’s favour, Customer will be entitled to the remedies described in Clause 5.3.
5.7 The warranty contained in this Clause 5 is specifically limited to Customer. No warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
5.8 If Customer makes an invalid claim under the warranty, Central Pharma may charge Customer for its fees and costs of examining, testing, storing and replacing the Products and dealing with the claim and removing and delivering the Products.
5.9 Except where expressly provided for in this Contract, Central Pharma excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Products.
6. PRODUCT RECALL AND OTHER RETURNS
6.1 For any returns of the Products, Customer shall provide Central Pharma with all information reasonably required by Central Pharma with the returned Products, including the name and address of Customer, the quantity and full description of the Products, the relevant invoice number, and the reason for the return.
6.2 In the event of a recall of any Product due to hidden defects, severe adverse reactions or otherwise, Customer shall provide all reasonable assistance to Central Pharma in accordance with Central Pharma’s reasonable requirements and, subject to Clause 7, Central Pharma shall reimburse Customer for the quantities of the Product recalled together with Customer’s other reasonable costs incurred in sending the Products back to Central Pharma unless the recall is necessitated by the act or omission of Customer or any third party provided that Customer shall hand over full control and management of any Product recall to Central Pharma and Customer shall comply with Central Pharma’s reasonable requirements in respect of the recall.
6.3 At Central Pharma’s absolute discretion, if Central Pharma accepts a return of any Products following delivery without Customer otherwise having a right of return under this Contract, such discretionary decision to accept a return will be subject to Customer first paying any re-stocking or cancellation fee required by Central Pharma and subject to any other requirements or conditions which Central Pharma stipulates, and provided that the Products have not been damaged, modified or in any way changed or altered after their delivery by Central Pharma.
7. LIABILITY
7.1 This Clause 7 prevails over all other Clauses and sets out the entire Liability of Central Pharma, and the sole and exclusive remedies of Customer, in respect of:
7.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or of any Products or services provided or to be provided by Central Pharma in connection with this Contract; or
7.1.2 otherwise in relation to this Contract or entering into this Contract.
7.2 Central Pharma does not exclude or limit its Liability for:
7.2.1 its fraud;
7.2.2 death or personal injury caused by its negligence;
7.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
7.2.4 any other Liability which cannot be excluded or limited by applicable law.
7.3 Subject to Clause 7.2, Central Pharma does not accept and hereby excludes any Liability for negligence other than any Liability arising pursuant to the terms of this Contract.
7.4 Subject to the Clause 7.2, Central Pharma shall have no Liability in respect of any:
7.4.1 indirect or consequential losses, damages, costs or expenses;
7.4.2 loss of actual or anticipated profits;
7.4.3 loss of contracts;
7.4.4 loss of use of money;
7.4.5 loss of anticipated savings;
7.4.6 loss of revenue;
7.4.7 loss of goodwill;
7.4.8 loss of reputation;
7.4.9 ex gratia payments;
7.4.10 loss of business;
7.4.11 loss of operation time;
7.4.12 loss of opportunity; or
7.4.13 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or Central Pharma or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 7.4.2 to 7.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
7.5 Subject to Clause 7.2, Central Pharma shall have no Liability in respect of any defects in any barcodes on any Products supplied to Customer unless Customer informs Central Pharma of such defect prior to the packaging and despatch of the Products by Customer to its customers or end users.
7.6 Subject to Clause 7.2, the total aggregate Liability of Central Pharma in respect of any Order shall be limited to the greater of: (a) £5,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by Customer to Central Pharma pursuant to the relevant Order.
7.7 The limitations of Liability under Clauses 7.4, 7.5 and 7.6 have effect in relation to both any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
8. PRICES AND PAYMENT
8.1 Customer shall pay to Central Pharma the Price and other sums due under this Contract and by the times required.
8.2 Unless otherwise stipulated in any Quotation or any Long Term Agreement (or otherwise agreed between the Parties in writing):
8.2.1 Central Pharma may issue an invoice to Customer for the Price (or the relevant part) and other sums due in connection with the Price on or prior to delivery of the Products; and
8.2.2 Customer shall pay Central Pharma in full prior to delivery of the Products.
8.3 Where Central Pharma requires payment in advance of delivery of the Products, their delivery is conditional on Central Pharma first receiving the advanced payment in cleared funds in full.
8.4 Where Central Pharma agrees in writing to extend credit to Customer (which Central Pharma may change in its absolute discretion by informing Customer in writing with immediate effect from time to time), then unless otherwise agreed in writing by the Parties and subject to any credit limit that Central Pharma has for Customer (as may updated by Central Pharma informing Customer in writing with immediate effect from time to time), Customer shall pay Central Pharma within 30 days of Customer receiving the relevant invoice.
8.5 The Price and any other sums due under this Contract are exclusive of any value added tax or other sales, import and export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Price and other sums due by Customer.
8.6 Customer shall pay Central Pharma by any payment method reasonably stipulated by Central Pharma. No cash payments shall be permitted.
8.7 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, Customer shall pay all sums due to Central Pharma under this Contract in Pound Sterling or such other currency which is force in England from time to time.
8.8 Payment shall be deemed made when Central Pharma has received cleared funds in full from Customer.
8.9 Payment of all sums due to Central Pharma under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
8.10 Without prejudice to any other right or remedy available to Central Pharma (whether under this Contract, in equity, at law or by any statute, regulation or bye- law, or otherwise), if Customer is late in paying any part of any monies due to Central Pharma under this Contract or any other contract between the Parties, Central Pharma may exercise one or more of the following remedies:
8.10.1 charge interest and claim other costs on the amount due but unpaid at an annual rate of interest of five per cent above the base rate of the National Westminster Bank from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
8.10.2 sell or otherwise dispose of any Products which are the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
8.10.3 suspend Central Pharma’s performance of this Contract and any other contract between the Parties until Customer has paid Central Pharma in full.
9. TERM AND TERMINATION
9.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.6 and, unless terminated earlier by either Party exercising any right of cancellation or termination as set out in this Contract, shall continue in force until the later of:
9.1.1 Customer having paid Central Pharma in full for all sums due under this Contract; and
9.1.2 Central Pharma having delivered all the Products to Customer.
9.2 Notwithstanding anything else contained in this Contract, it may be terminated by either Party by notifying the other Party with immediate effect if:
9.2.1 the other Party is in material breach of any of its obligations under this Contract which is incapable of remedy;
9.2.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract after having been required in writing to remedy such breach within a period of no less than 30 days;
9.2.3 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court that” did not appear in sections 123(1)(e) or 123(2);
9.2.4 the other Party begins negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors, other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
9.2.5 the other Party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
9.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company, limited liability partnership or partnership), other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
9.2.7 an application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or an administrator is appointed over the other Party;
9.2.8 the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;
9.2.9 a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
9.2.10 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen days;
9.2.11 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 9.2.3 to 9.2.10;
9.2.12 the other Party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
9.2.13 the other Party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy.
9.3 Central Pharma may terminate this Contract by notifying Customer with immediate effect if Customer is at least seven days late in paying any sum due under this Contract or any other contract between the Parties.
9.4 The expiry or termination of this Contract will be without prejudice to any other rights or remedies which either Party may be entitled to under this Contract or at law and will not affect any accrued rights or liabilities of either Party.
9.5 The expiry or termination of this Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue into force on or after such termination.
9.6 Upon termination or expiry of this Contract for any reason:
9.6.1 Central Pharma shall cease to be required to perform this Contract;
9.6.2 Central Pharma may require Customer to receive and pay for any Products that are ready or nearly ready for delivery to Customer (even if not yet delivered) as at termination or expiry;
9.6.3 Customer shall reimburse Central Pharma on demand for any out of pocket costs and expenses reasonably incurred by Central Pharma in anticipation of performing this Contract but where the Products are not delivered by Central Pharma; and
9.6.4 all outstanding sums owed by Customer to Central Pharma shall become immediately payable, whether invoiced or not.
10. FORCE MAJEURE
10.1 Save for obligations in respect of payment of the Price, costs, expenses and storage fees in accordance with this Contract and any other sum owed by Customer to Central Pharma under this Contract, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Contract which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen.
10.2 Each Party shall inform the other Party in writing upon becoming aware of an Event of Force Majeure, such communication to contain details of the circumstances giving rise to the Event of Force Majeure.
10.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
10.4 If there is an Event of Force Majeure which continues without a break for more than three months, either Party may terminate this Contract by notifying the other Party with immediate effect, in which event neither Party shall have any Liability by reason of such termination save as otherwise described in this Contract.
10.5 Each Party shall use its reasonable endeavours to assist and co-operate with the other Party to mitigate the effects of an Event of Force Majeure, but neither Party shall be required to take steps that it would be unreasonable to expect it to take.
10.6 Subject to the provisions of this Clause 10, if Central Pharma has contracted to provide identical or similar products to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, Central Pharma may decide in its absolute discretion which contracts it will perform and to what extent.
11. NOTICES
11.1 Any notice required or authorised to be given under this Contract shall be in writing and shall be served by personal delivery or by letter sent by a generally recognised commercial express courier addressed to the relevant Party at its principal place of business as stated in this Contract or at such other address as the relevant Party informs the other Party in writing for this purpose from time to time or at the address of the relevant Party last known to the other Party.
11.2 Any notice served by letter by express courier shall be deemed to have been served two Business Days after the same shall have been despatched, and in proving such service it shall be sufficient to prove that the letter was properly addressed and despatched and delivered, and any notice served by personal delivery shall be deemed served on the date of such delivery.
11.3 This Clause 11 does not apply to the service of any proceedings or any documents in any legal action concerning this Contract.
12. USE OF INFORMATION
12.1 Central Pharma may use data collected about Customer and Customer’s representatives for the following purposes:
12.1.1 credit checks, credit searches, credit scoring, credit insurance and securitisation, and Central Pharma may provide or exchange that information with third parties (including bankers and financiers) for that purpose;
12.1.2 administering Customer’s account and Orders; and
12.1.3 sending details of further products and services with which Central Pharma or its associated people or organisations are involved.
13. ASSIGNMENT
13.1 Subject to Clause 13.2, neither Party shall or shall purport to assign, transfer, novate, sub-license, charge or otherwise encumber, create any trust over or deal in any manner with this Contract or any of its rights, liabilities or obligations under this Contract to any person or entity (whether orally, in writing, by operation of law or otherwise) without the prior written consent of the other Party.
13.2 Central Pharma is entitled to sub-contract any or all of its obligations under this Contact to one or more third parties. Any act or omission of any such subcontractor shall for the purposes of this Contract be deemed to be the act or omission of Central Pharma and Customer will have no contractual relationship with any such third party.
14. WAIVER
14.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Contract or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under this Contract or at law.
15. SEVERABILITY
15.1 If any provision of this Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Contract, and the validity and enforceability of the other provisions of this Contract shall not be affected.
15.2 If a provision of this Contract (or part of any provision) is found illegal, invalid or unenforceable, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.
16. RELATIONSHIP OF THE PARTIES
16.1 The relationship of the Parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in this Contract, nothing in this Contract shall constitute the Parties as partners, joint venturers or co-owners, or constitute either Party as the agent, employee or representative of the other Party, or empower either Party to act for, bind or otherwise create or assume any obligation on behalf of the other Party, and neither Party shall hold itself out as having authority to do the same.
17. THIRD PARTY RIGHTS
17.1 A person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
17.2 The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any other person.
18. GOVERNING LAW AND JURISDICTION
18.1 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or its formation, shall be governed by, and construed in accordance with, the laws of England and Wales.
18.2 If each Party is domiciled in either the United Kingdom or the European Union, the Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with this Contract or its subject matter or its formation (including non-contractual disputes or claims).
18.3 If either Party is or both of the Parties are domiciled outside of the United Kingdom and the European Union, any claim, dispute or matter of difference which may arise out of or in connection with this Contract or its subject matter or its formation (including non- contractual disputes or claims) shall be exclusively referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (the LCIA Arbitration Rules). The LCIA Arbitration Rules are deemed to be incorporated by reference into this Clause 18.3. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
18.4 All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.