| 1. |
Definitions and Interpretation |
| 1.1 |
In these Conditions the following definitions apply:
'Business Day' means a day (other than a Saturday, Sunday or public
holiday) when banks in London are open for business.
'Company' means Aventis Pharma Limited (company number 01535640)
having its registered office at 410 Thames Valley Park Drive, Reading, RG6 1PT.
'Conditions' means the terms and conditions set out in this
document, as amended from time to time.
'Contract' means the contract between the Company and Customer for
the sale and purchase of the Products in accordance with these Conditions.
'Customer' means the person or entity who purchases the
Products.
'Force Majeure Event' has the meaning set out in
clause 10 of these Conditions.
'Party' and
'Parties' means the Company and Customer.
'Products' means the products (or any part of them) set out in the
Order.
'Order' means Customer's order for the Products as
accepted by the Company. |
| 1.2 |
In these Conditions the following rules apply: |
| 1.2.1 |
a person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality). |
| 1.2.2 |
a reference to a party includes its personal representatives,
successors or permitted assigns. |
| 1.2.3 |
a reference to a statute 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. |
| 1.2.4 |
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. |
| 1.2.5 |
a reference to writing or written includes faxes and e-mails. |
| 2. |
General Principles |
| 2.1 |
These Conditions apply to all sales of Products made by Aventis Pharma
Limited ("Aventis Pharma Limited") to the exclusion of any other terms that may
otherwise be imposed by UK and/or European legislation, and any other terms Customer
seeks to impose or incorporate, or which are implied by trade, custom, practice or
course of dealing. |
| 2.2 |
All brochures, catalogues and all promotional materials are to be
treated as illustrative only. Their contents form no part of any contract between
the Company and Customer and Customer should not rely on them in entering into the
Contract. |
| 2.3 |
An Order sent to the Company constitutes an offer by Customer to
purchase the Products in accordance with the Conditions. |
| 2.4 |
An Order shall only be deemed to be final and binding once accepted by
the Company, at which point the Contract shall come into existence. |
| 2.5 |
The Company reserves sole discretion as to whether to permit any
requested cancellation or amendment. |
| 2.6 |
The Company reserves its rights to suspend or cancel any Order if
Customer: |
| 2.6.1 |
fails to pay any monies when due (under the Order or otherwise); |
| 2.6.2 |
becomes insolvent; or |
| 2.6.3 |
breaches any of the Conditions of the Contract. |
| 3. |
Delivery |
| 3.1 |
The Company shall deliver the Products to the location set out in the
Order or such other location as the Parties may agree in advance and in writing
('Delivery Location'). |
| 3.2 |
Delivery of the Products shall be completed on the Products arrival at
the Delivery Location. |
| 3.3 |
Any dates and times for delivery are approximate only, and the time of
delivery is not of the essence. The Company shall not be liable for any delay in
delivery that is caused by a Force Majeure Event or Customer's failure to provide
the Company with adequate delivery instructions or any other instructions that are
relevant to the supply of the Products. |
| 3.4 |
In the event of short shipments, breakage of Products in transit,
receipt of damaged Products, batch or pricing discrepancy, or any other alleged
departure from these terms and conditions, the Customer must notify the Company
within three (3) Business Days of receipt of the Products. |
| 3.5 |
If the Company fails to deliver the Products Customer may, by informing
the Company in writing, cancel the Contract, however: |
| 3.5.1 |
Customer may not cancel the Contract if the Products have already been
dispatched by the Company; and |
| 3.5.2 |
where Customer cancels the Contract, Customer has no further claim
against the Company under that Contract and/ or in relation to the Products which
were subject to that Contract. |
| 3.6 |
The Company may deliver the Products in instalments, which shall be
invoiced and paid for separately. Each instalment shall constitute a separate
Contract. Any delay in delivery or defect in an instalment shall not entitle
Customer to cancel any other instalment. |
| 3.7 |
The Company may decline to deliver if: |
| 3.7.1 |
The Company believes it would be unsafe, unlawful or unreasonably
difficult to do so; or |
| 3.7.2 |
the premises (or access to them) are unsuitable for the delivery
vehicle. |
| 3.8 |
Customer is responsible for ensuring that all products are stored
correctly in accordance with the instructions on the packaging. |
| 4. |
Title and Risk |
| 4.1 |
Risk in the Products shall pass to Customer on completion of delivery.
|
| 4.2 |
Title to the Products shall not pass to Customer until the Company has
received payment in full (in cleared funds) for the Products. |
| 4.3 |
Until title to the Products has passed to Customer, Customer shall:
|
| 4.3.1 |
hold the Products on a fiduciary basis as the Company bailee; |
| 4.3.2 |
store the Products separately from all other goods held by Customer so
that they remain readily identifiable as the Company's property; |
| 4.3.3 |
not remove, deface or obscure any identifying mark or packaging on or
relating to the Products; |
| 4.3.4 |
maintain the Products in satisfactory condition and keep them insured
against all risks for their full price from the date of delivery; |
| 4.3.5 |
notify the Company immediately if it becomes subject to any of the
events listed in clause 8.2; and |
| 4.3.6 |
provide the Company such information relating to the Products as the Company may
require from time to time, but Customer may resell or use the Products in the
ordinary course of its business, unless informed otherwise in writing by the
Company.
|
| 4.4 |
If before title to the Products passes to Customer it becomes subject
to any of the events listed in clause 8.2, or the Company reasonably believes that
any such event is about to happen and notifies Customer accordingly, then, provided
that the Products have not been resold, or irrevocably incorporated into another
product, and without limiting any other right or remedy the Company may have, the
Company may at any time require Customer to deliver up the Products and, if Customer
fails to do so promptly, enter any premises of Customer or of any third party where
the Products are stored in order to recover them. |
| 4.5 |
The Company reserves its right to take legal action to recover the
price of the Products from Customer should Customer not pay the Company in
accordance with the Contract, regardless of the passing or not of title. |
| 5. |
Quality |
| 5.1 |
The Company warrants that on delivery the Products shall: |
| 5.1.1 |
conform with their description; and |
| 5.1.2 |
be free from material defects in design, material and workmanship. |
| 5.2 |
The Company provides no other warranties, and excludes all other
warranties, terms and conditions that may otherwise be implied, including those
applicable to the quality of the Products or their fitness for any purpose. |
| 5.3 |
Subject to clause 5.4, if: |
| 5.3.1 |
Customer gives written notice to the Company within three (3) Business
Days of delivery of the Products that some or all of the Products do not comply with
the warranty set out in clause 5.1; |
| 5.3.2 |
The Company is given reasonably opportunity of examining the Products;
and |
| 5.3.3 |
Customer, if asked to do so in writing by the Company, returns such Products to
the Company, the Company shall, at its option, replace the defective Products or
refund the price of the defective Products in full.
|
| 5.4 |
The Company shall not be liable for Products' failure to comply with
the warranty set out in clause 5.1 in any of the following events: |
| 5.4.1 |
the defect arises because Customer failed to follow the Company's
instructions as to the storage, handling and use of the Products or (if there are
none) good industry practice regarding the same; |
| 5.4.2 |
Customer alters the Products, including the packaging and labelling; or
|
| 5.4.3 |
the defect arises as a result of wilful damage, negligence, or
inappropriate storage or inappropriate handling conditions. |
| 5.5 |
Except as provided in this clause 5, the Company shall have no other
liability to Customer in respect of the Products' failure to comply with the
warranty set out in clause 5.1, and/or any other Conditions. |
| 5.6 |
These Conditions shall apply to any replacement Products supplied by
the Company. |
| 6. |
Price and Payment |
| 6.1 |
The price of the Products shall be the price set out in the Order, or,
if no price is quoted, the price set out in the Company's published price list in
force as at the date of delivery. |
| 6.2 |
A delivery charge, at the discretion of the Company, will be added to
all orders below £100 (one hundred pounds) net, unless otherwise confirmed in
writing by the Company. |
| 6.3 |
All prices are exclusive of Value Added Tax ('VAT'), unless otherwise
stated. VAT will be charged at the rate applying at the time of delivery. |
| 6.4 |
Unless Customer has an approved credit account with the Company,
Customer must pay the Company in cleared funds prior to delivery. |
| 6.5 |
The Company may invoice Customer for the Products any time after
acceptance of the Order by the Company. |
| 6.6 |
Customer shall pay the invoice in full and in cleared funds by the end
of the month following the month the invoice was dated. Payment shall be made to the
bank account nominated in writing by the Company. Time of payment is of the essence.
|
| 6.7 |
If Customer fails to make any payment due to the Company under the
Contract by the due date for payment, then Customer shall pay interest on the
overdue amount at the rate of 4% per annum above the Bank of England's base rate
from time to time. Such interest shall accrue on a daily basis from the due date
until actual payment of the overdue amount, whether before or after judgment.
Customer shall pay the interest together with the overdue amount. |
| 6.8 |
In addition to the provisions of clause 6.7, if Customer fails to pay
any sum owing, the COmpany may, in its absolute discretion: |
| 6.8.1 |
suspend or cancel future deliveries; |
| 6.8.2 |
cancel any discount offered to Customer; |
| 6.8.3 |
amend, alter or modify any terms offered to the Customer, including but
not limited to any credit limit; |
| 6.8.4 |
recover from Customer the cost of taking legal action to claim unpaid
sums. |
| 6.9 |
Customer shall pay all amounts due under the Contract in full without
any set-off, counterclaim, deduction or withholding (except for any deduction or
withholding required by law). the Company may at any time, without limiting any
other rights or remedies it may have, set off any amount owing to it by Customer
against any amount payable by the Company to Customer. |
| 7. |
Returns |
| 7.1 |
No return of Products shall be accepted unless a prior written
agreement by the Company has been made. |
| 8. |
Insolvency |
| 8.1 |
If Customer becomes subject to any of the events listed in clause 8.2,
or the Company reasonably believes that Customer is about to become subject to any
of them and notifies Customer accordingly, then, without limiting any other right or
remedy available to the Company, the Company may cancel or suspend all further
deliveries under the Contract or under any other contract between Customer and the
Company without incurring any liability to Customer, and all outstanding sums in
respect of Products delivered to Customer shall become immediately due. |
| 8.2 |
For the purposes of clause 8.1, the relevant events are: |
| 8.2.1 |
Customer 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 the Insolvency Act 1986; |
| 8.2.2 |
Customer commences 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 its creditors other than where these events take
place for the sole purpose of a scheme for a solvent amalgamation of Customer with
one or more other companies or the solvent reconstruction of Customer; |
| 8.2.3 |
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 Customer, other than for
the sole purpose of a scheme for a solvent amalgamation of Customer with one or more
other companies or the solvent reconstruction of Customer; |
| 8.2.5 |
a creditor or encumbrancer of Customer 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 (14) days; |
| 8.2.6 |
an application is made to court, or an order is made, for the
appointment of an administrator or if a notice of intention to appoint an
administrator is given or if an administrator is appointed over Customer; |
| 8.2.7 |
the holder of a qualifying charge over Customer's assets has become
entitled to appoint or has appointed an administrative receiver; |
| 8.2.8 |
a person becomes entitled to appoint a receiver over Customer's assets
or a receiver is appointed over Customer's assets; |
| 8.2.9 |
Customer suspends, threatens to suspend, ceases or threatens to cease
to carry on all or a substantial part of its business; and |
| 8.2.10 |
Customer's financial position deteriorates to such an extent that in
the Supplier's opinion Customer's capability to adequately fulfil its obligations
under the Contract has been placed in jeopardy. |
| 8.3 |
Termination of the Contract, however arising, shall not affect any of
the parties' rights and remedies that have accrued as at termination. Clauses which
expressly or by implication survive termination of the Contract shall continue in
full force and effect. |
| 9. |
Limitation of Liability |
| 9.1 |
Nothing in these Conditions shall limit or exclude the Company's
liability for death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors (as applicable); fraud or fraudulent
misrepresentation; and any matter in respect of which it would be unlawful for the
Company to exclude or restrict liability. |
| 9.2 |
Subject to clause 9.1: |
| 9.2.1 |
The Company shall under no circumstances whatsoever be liable to
Customer, whether in contract, tort (including negligence), breach of statutory
duty, or otherwise, for any loss of profit, or any indirect or consequential loss
arising under or in connection with the Contract; and |
| 9.2.2 |
The Company's total liability to Customer, unless otherwise stated
elsewhere in the Contract, in respect of all other losses arising under or in
connection with the Contract, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, shall in no circumstances exceed one hundred
pounds (£100). |
| 10. |
Force Majeure |
| |
Neither party shall be liable for any failure or delay in performing its
obligations under the Contract to the extent that such failure or delay is
caused by a Force Majeure Event. A Force Majeure Event means any event beyond a
Party's reasonable control, which by its nature could not have been foreseen,
or, if it could have been foreseen, was unavoidable, including strikes,
lock-outs or other industrial disputes (whether involving its own workforce or a
third party's), failure of energy sources or transport network, acts of God,
war, terrorism, riot, civil commotion, interference by civil or military
authorities, national or international calamity, armed conflict, malicious
damage, breakdown of plant or machinery, nuclear, chemical or biological
contamination, sonic boom, explosions, collapse of building structures, fires,
floods, storms, earthquakes, loss at sea, epidemics or similar events, natural
disasters or extreme adverse weather conditions, or default of suppliers or
subcontractors.
|
| 11. |
Intellectual Property |
| 11.1 |
Customer shall not have any intellectual property right with regard to
the Products, and the Company shall remain the exclusive owner or licensee of all
such rights. Any use in any manner whatsoever by Customer of the trademark and/or
logo of the Company , of the Products, and/or of any other trademark owned by or
licensed by the Company, is strictly prohibited without the Company's prior written
agreement. Any marketing and sale of the Products undertaken by Customer must be
made exclusively under the Company trademark or any other trademark owned by or
licensed by the Company, to the exclusion of any trademark or distinctive sign owned
by Customer or any other person. |
| 11.2 |
Customer shall inform the Company of any legal action brought against
them concerning matters of intellectual property of the Company's Products, and
shall not take any steps without expressly referring the matter to the Company. The
Company alone shall be entitled to conduct the proceedings and decide on any action
to be taken with regards to the items concerned, with respect both to the courts as
well as third parties involved in the case. |
| 12. |
General |
| 12.1 |
The Contract, and any dispute or claim arising out of or in connection
with it or its subject matter or formation (including non-contractual disputes or
claims), shall be governed by, and construed in accordance with the laws of England
. Each party irrevocably agrees that the courts of England shall have exclusive
jurisdiction to settle any dispute or claim arising out of or in connection with
this Contract or its subject matter or formation (including non-contractual disputes
or claims). |
| 12.2 |
The Company may at any time assign, transfer, mortgage, charge,
subcontract or deal in any other manner with all or any of its rights or obligations
under the Contract. |
| 12.3 |
Customer may not assign, transfer, mortgage, charge, subcontract,
declare a trust over or deal in any other manner with any or all of its rights or
obligations under the Contract without the prior written consent of the Company.
|
| 12.4 |
If any provision or part-provision of the Contract is or becomes
invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent
necessary to make it valid, legal and enforceable. If such modification is not
possible, the relevant provision or part-provision shall be deemed deleted. Any
modification to or deletion of a provision or part-provision under this clause shall
not affect the validity and enforceability of the rest of the Contract. |
| 12.5 |
A waiver of any right or remedy under the Contract or law is only
effective if given in writing and shall not be deemed a waiver of any subsequent
breach or default. No failure or delay by a party to exercise any right or remedy
provided under the Contract or by law shall constitute a waiver of that or any other
right or remedy, nor shall it prevent or restrict the further exercise of that or
any other right or remedy. No single or partial exercise of such right or remedy
shall prevent or restrict the further exercise of that or any other right or remedy.
|
| 12.6 |
Except as set out in these Conditions, no variation of the Contract,
including the introduction of any additional terms and conditions, shall be
effective unless it is in writing and an authorised representative of the Company.
|
| 12.7 |
A person who is not a party to the Contract shall not have any rights
to enforce its terms. |
| 12.8 |
Any notice by either party which is to be served under these Conditions
may be served by leaving it at or by delivering it to (by first class post) the
other party's registered office or principal place of business. All such notices
must be signed. |
| 12.9 |
The Contract constitutes the entire agreement and understanding between
the Parties. Customer acknowledges that it has not relied on any statement, promise,
representation, assurance or warranty made or given by or on behalf of the Company
which is not set out in the Contract. |
