Commercial Terms and Conditions
Updated On 21.05.2020
Updated On 21.05.2020
1. Interpretation
The following definitions and rules of interpretation in this clause apply to these terms and conditions (hereinafter referred to as the “agreement”):
1.1 Definitions:
Actual Purchase Amount: the combined Discount Price of Products purchased by the Customer during a Quarter.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date that the Customer confirms acceptance of this agreement.
Confidential Information: any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its Group, including but not limited to information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers.
Data Discloser: a party that discloses Shared Personal Data to the other party.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deficit: the difference between the Minimum Purchase Amount and the Actual Purchase Amount.
Deficit Statement: has the meaning given to it clause 9.7.
Delivery: completion of delivery of Products specified in an Order in accordance with clause 5.7(a) and 5.9.
Delivery Location: the delivery address specified by the Customer in the Order (provided always that such location is within the UK and Channel Islands).
Discount Prices: has the meaning given to it in clause 9.3.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
holding company: has the meaning given in clause 1.7.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
Minimum Purchase Amount: has the meaning given to it in clause 9.3.
month: a calendar month.
Order: an order for Products submitted by the Customer in accordance with clause 3.
Order Number: the reference number to be applied to an Order by the Supplier in accordance with clause 3.5.
Products: the products set out in Schedule 1 and, where the context requires, the Products ordered by and supplied to the Customer.
Product Prices: the prices of the Products payable by the Customer as determined in accordance with clause 9.1 and Product Price: means the price of an individual Product as determined in accordance with that clause.
Quarter: each period of three consecutive months commencing on the date on which the Supplier notifies the Customer that the Customer may purchase the Products at the Discount Price.
Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement
Representatives: has the meaning given in clause 18.2.
Shared Personal Data: the personal data to be shared between the parties under clause 23.1 of this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
a) the names of current and potential customers of the Customer;
b) their geographical and email addresses; and
c) their home and mobile telephone numbers.
subsidiary: has the meaning given in clause 1.7.
Term: the term of the agreement, as determined in accordance with clause 19.
Trade Marks: the trade mark registrations and applications listed in Schedule 2 and any further trade marks that the Supplier may, by express notice in writing, permit, or procure permission for, the Customer to use in respect of the Products.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 The terms Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meaning set out in the UK Data Protection Legislation in force at the time.
1.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.
1.6 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.7 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.8 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.9 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.10 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.11 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.12 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.13 A reference to writing or written includes email.
1.14 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.15 References to a document in agreed form are to that document in the form agreed by the parties and initialled by or on their behalf for identification.
1.16 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.17 References to clauses and Schedules are to the clauses and Schedules of this agreement; and references to paragraphs are to paragraphs of the relevant Schedule.
1.18 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
2. Supply of products
2.1 During the Term, the Supplier shall supply and the Customer shall purchase such quantities of Products as the Customer may order under clause 3 in accordance with the terms and conditions of this agreement.
2.2 The terms and conditions set out within this agreement apply to all Orders to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Orders
3.1 The Customer shall place orders for the Products by giving the Supplier an Order.
3.2 Each Order shall be deemed to be a separate offer by the Customer to purchase Products on the terms of this agreement, which the Supplier shall be free to accept or decline at its absolute discretion.
3.3 Subject to clause 5.1, no Order shall be deemed to be accepted by the Supplier until it issues an Order Number.
3.4 Each Order shall:
(a) be given in writing or, if given orally, shall be confirmed in writing within two Business Days; and
(b) specify the type and quantity of Products ordered.
3. Orders
3.1 The Customer shall place orders for the Products by giving the Supplier an Order.
3.2 Each Order shall be deemed to be a separate offer by the Customer to purchase Products on the terms of this agreement, which the Supplier shall be free to accept or decline at its absolute discretion.
3.3 Subject to clause 5.1, no Order shall be deemed to be accepted by the Supplier until it issues an Order Number.
3.4 Each Order shall:
(a) be given in writing or, if given orally, shall be confirmed in writing within two Business Days; and
(b) specify the type and quantity of Products ordered.
3.5 The Supplier shall assign an Order Number to each Order it accepts and notify those Order Numbers to the Customer. Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order and the Customer shall quote the relevant Order Number as a payment reference when the invoice is paid.
4. Quality and packing
4.1 The Supplier shall pack and supply the Products in accordance with all generally accepted industry standards and practices that are applicable.
4.2 The Products supplied to the Customer by the Supplier under this agreement shall:
(a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier;
(b) be free from defects in design, material and workmanship on Delivery; and
(c) comply with all applicable statutory and regulatory requirements.
4.3 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 agreement.
4.4 The Supplier shall ensure that the Products are properly packed and secured in a manner to enable them to reach their destination in good condition.
5. Delivery
5.6 Delays in the delivery of an Order shall not entitle the Customer to:
(a) refuse to take delivery of the Order; or
(b) claim damages; or
(c) terminate this agreement, subject to clause 20.
5.7 If the Customer fails to accept delivery of an Order, then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under this agreement:
(a) the Order shall be deemed to have been delivered at 17:00 on the date of arrival of the Order at the Delivery Location; and
5.13 The Customer shall give the Supplier as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
6. Acceptance and defective products
6.1 The Customer may reject any Products delivered to it that do not comply with clause 4.2, provided that:
(a) notice of rejection is given to the Supplier:
(i) in the case of a defect that is apparent on normal visual inspection, within one Business Days of Delivery;
(ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and
6.3 The Supplier shall not be liable for a Product’s failure to comply with the warranty set out in clause 4.2 in any of the following events:
(a) the Customer makes any further use of those Products after giving notice in accordance with clause 6.1;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions for the storage of the Products or good trade practice regarding the same;
(c) the Customer alters those Products without the written consent of the Supplier;
(d) the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
6.4 If the Customer rejects Products under clause 6.1 then the Customer shall, subject to clause 6.5, be entitled to:
(a) require the Supplier to replace the rejected Products; or
(b) require the Supplier to repay the price of the rejected Products in full.
6.6 The terms of this agreement shall apply to any replacement Products supplied by the Suppli
7. Title and risk
7.2 Title to Products shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Products and all other sums that are or that become due to the Supplier from the Customer for sales of Products or on any account, in which case title to these Products shall pass at the time of payment of all such sums; and
7.3 Until title to Products has passed to the Customer, the Customer shall:
(a) store those Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to those Products; and
7.4 Subject to clause 7.5, the Customer may resell Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as the Supplier’s agent; and
7.5 If before title to Products passes to the Customer the Customer becomes subject to any of the events listed in clause 20.2(b), then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell Products or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored to recover them.
8. Product recall
8.1 If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Products from the market (Recall Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.
8.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions about the process of implementing the withdrawal.
9. Product prices
9.1 The Product Prices as at the Commencement Date shall be the standard wholesale prices set out in Schedule 1. The Supplier may, by giving notice to the Customer at any time, increase the price of the Products.
9.2 The Product Prices are exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier any additional amounts in respect of VAT as are chargeable on a supply of Products.
9.3 The Supplier may, at its sole discretion, agree to supply the Products to the Customer at discounted rates (Discount Prices) from the Product Prices in exchange for the Customer agreeing to purchase a minimum value of Products during a Quarter, as notified by the Supplier to the Customer in writing (such minimum value of Products being the Minimum Purchase Amount).
9.4 Where the Supplier has agreed to supply the Products at the Discount Prices, the Customer shall in each Quarter purchase the Minimum Purchase Amount from the Supplier.
9.5 For the purposes of calculating the Actual Purchase Amount, the combined Discount Prices of the Products purchased by the Customer in a Quarter shall be calculated by reference to the Discount Prices granted during that Quarter, exclusive of VAT and any other incidental costs payable in respect of purchases of the Products.
9.6 If the Actual Purchase Amount is less than the Minimum Purchase Amount, then, except to the extent the shortfall in purchases was caused by the Supplier’s default or by a Force Majeure Event, the Customer shall pay an amount equal to the Deficit to the Supplier in accordance with clause 9.6.
9.7 The Supplier may from time to time submit a statement to the Customer showing the quantities of Products purchased by the Customer during any Quarter and showing whether or not there has been a Deficit (Deficit Statement). In the event that a Deficit Statement shows that there has been a Deficit, the Customer shall pay an amount equal to the Deficit to the Supplier in cleared funds within 30 days of receipt of the Deficit Statement.
9.8 If a Deficit payment is due and is not paid by the Customer to the Supplier in accordance with clause 9.6 then the Supplier shall be entitled to add the Deficit amount on to any future invoices.
10. Price review
10.1 The Supplier may at any time following receipt of an Order but prior to delivery, by giving notice to the Customer, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) 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);
(b) any request by the Customer to change the delivery date, quantities or types of Products ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
11. Re-sale Price
The Customer is free to resell the Products at prices set by the Customer but the Customer agrees to take into consideration all pricing guidelines provided by the Supplier. It is acknowledged that any pricing guidelines provided by the Supplier are recommendations only.
12. Terms of payment
12.7 All payments payable to the Supplier by the Customer under this agreement shall become immediately due and payable:
(a) on termination of this agreement for any reason; or
(b) if the Customer becomes subject to any of the events listed in clause 20.2(b).
This clause 12.7 is without prejudice to any right to claim for interest under the law or under this agreement.
13. Advertising and promotion
13.1 The Customer shall:
(a) not use any advertising materials or promotional literature relating to the Products without the Supplier’s prior written consent;
(b) observe all directions and instructions given to it by the Supplier for promotion and advertisement of the Products; and
(c) not make any written statement as to the quality or manufacture of the Products without the prior written approval of the Supplier.
13.2 The Customer shall provide the Supplier with information on any advertising and promotion carried out by the Customer in connection with the Products at the request of the Supplier.
13.3 The Customer shall ensure that any website that it uses for the sale of the Products complies with the quality standards and criteria set by the Supplier.
13.4 The Customer shall not under any circumstances advertise or market the Products as having any medicinal value or health benefit and agrees not to advertise or market the Products as medicine.
14. Trade marks
14.1 The Supplier hereby grants to the Customer the non-exclusive right, in the UK, to use the Trade Marks in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this agreement. The Customer acknowledges and agrees that all rights in the Trade Marks shall remain with the Supplier, and that Customer has and will acquire no right in them by virtue of the discharge of its obligations under this agreement, except for the right to use the Trade Marks as expressly provided in this agreement.
14.2 The Customer shall market and sell the Products only under the Trade Marks, and not in association with any other trade mark, brand or trade name, except with the Supplier’s written consent. The Customer shall ensure that the appropriate Trade Marks shall appear on all Products, containers and advertisements for the Products, followed by the symbol ®, or the letters ™, as appropriate.
14.3 All representations of the Trade Marks that the Customer intends to use shall be submitted to the Supplier for written approval before use.
14.4 The Customer shall comply with all rules for the use of the Trade Marks issued by the Supplier (including those set out in any branding manual issued by the Supplier) and shall not, without the prior written consent of the Supplier:
(a) alter or make any addition to the labelling or packaging of the Products displaying the Trade Marks;
(b) make any addition or modifications to the Products or to any advertising and promotional materials supplied by the Supplier; or
(c) alter, deface or remove any reference to the Trade Marks, any reference to the Supplier or any other name attached or affixed to the Products or their packaging or labelling.
14.5 The Supplier makes no representation or warranty as to the validity or enforceability of the Trade Marks nor as to whether they infringe any intellectual property rights of third parties.
14.6 The Customer shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Marks granted under this agreement.
14.7 The Customer shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity or reputation.
14.8 The Customer acknowledges that this agreement does not operate to vest any right, title or interest in the Trade Marks in the Customer. The Customer shall immediately on request enter into any further agreements with the Supplier, in a form satisfactory to the Supplier, necessary for the recording, registration or safeguarding of the Supplier’s Trade Mark rights for the marketing of the Products under the Trade Marks.
14.9 Each party shall promptly give notice in writing to the other if it becomes aware of:
(a) any infringement or suspected infringement of the Trade Marks or any other intellectual property rights relating to the Products; or
(b) any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trade Marks, infringes the rights of any third party.
14.10 In respect of any matter that falls within clause 14.9(a):
(a) the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any);
(b) the Supplier shall conduct and have sole control over any consequent action that it deems necessary; and
(c) the Supplier shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.
14.11 In respect of any matter that falls within clause 14.10(b):
(a) the Supplier shall the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any).
14.12 Each party shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this clause 14, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.
14.13 The Supplier alone is responsible for the registration and maintenance of any marks or designs that relate to the Products. The Customer shall not obtain or try to obtain or register for itself anywhere in the world any trade marks or trade names the same as or similar to the Trade Marks.
14.14 The Customer shall not use the Trade Marks as part of the name under which the Customer conducts its business, or any connected business, or under which it sells or services any products (except the Products), or in any other way, except as expressly permitted hereunder.
14.15 The Customer shall not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trade Marks to any other party, except as otherwise expressly permitted under this agreement.
14.16 Upon termination of this agreement for any reason, the Customer will immediately stop using all or any part of the Trade Marks.
15. Compliance with laws and policies
15.2 The Supplier may terminate the agreement with immediate effect by giving written notice to the Customer if the Customer commits a breach of clause 15.1.
16. Limitation of liability
16.1 This clause 16 sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other for:
(a) any breach of this agreement however arising;
(b) any use made or resale of the Products by the Customer, or of any product incorporating any of the Products; and
16.2 Nothing in this agreement shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
16.3 Without prejudice to clause 16.2, the Supplier shall not under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated saving; or
(f) loss or corruption of data or information; or
(g) special, indirect or consequential damage.
16.4 Without prejudice to clause 16.2 or clause 16.3, the Supplier’s total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the amount spent in Orders by the Customer with the Supplier in the month immediately preceding the date on which the matter giving rise to the liability occurred.
17. Assignment and other dealings
17.2 The Supplier may at any time on written notice to the Customer assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
18. Confidentiality
(a) to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know this information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 18 as though they were a party to this agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause 18; and
