THESE TERMS AND CONDITIONS (THESE “CONDITIONS”) SHALL APPLY TO THE SUPPLY OF PRODUCTS BY DUNELM PHARMACEUTICALS LIMITED AND SHALL BE DEEMED TO BE ACCEPTED BY THE BUYER UPON THE PLACING OF AN ORDER OR THE ACCEPTANCE OF DUNELM PHARMACEUTICALS LIMITED’S QUOTATION. THESE TERMS AND CONDITIONS AS AMENDED FROM TIME TO TIME SHALL APPLY TO THE EXCLUSION OF ANY OTHER TERMS WHETHER CONTAINED IN ANY BUYER PURCHASE ORDER, ACCEPTANCE OF QUOTATION OR OTHERWISE, UNLESS EXPRESSLY AGREED IN WRITING BY DUNELM PHARMACEUTICALS LIMITED. THE TERMS OF ANY DOCUMENT ISSUED BY THE BUYER AFTER RECEIPT OF DUNELM PHARMACEUTICALS LIMITED’S QUOTATION SHALL NOT APPLY.
In these Conditions:
- “Applicable Laws”
means all national and local laws, ordinances, rules and regulations as amended, re-enacted or in force from time to time applicable to these Conditions;
means the person, company, firm, trust, body or other entity which places an Order pursuant to the terms of these Conditions;
means the contract between the Seller and the Buyer for the sale of the Products comprising only these Conditions and any other particular conditions specified in the Quotation and/or agreed in writing between the Seller and the Buyer which refer to these Conditions;
- “Intellectual Property Rights”
means all patents, rights to inventions, utility models, copyright and related
Rights” rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights to use, and protect the confidentiality of, confidential information (including know-how, methodologies and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection subsisting now or in the future in any part of the world;
means the Seller’s invoice accepting the Buyer’s Order for the Products;
means the Buyer’s order for the Products which are either:
- addressed in writing stating a unique order reference to the Seller at its Sales Department using the following email address: firstname.lastname@example.org; or
submitted via the Seller’s website, which will create a unique reference on the Buyer’s behalf;
means the products which the Seller agrees to supply to the Buyer pursuant to the Specifications as set out or referred to in the Order accepted by the Seller;
means a written quotation provided by the Seller to the Buyer to which these Conditions are attached and/or which refers to these Conditions;
means the specifications for the Products set out in the Order and confirmed in the Invoice or such specifications as may otherwise be agreed between the Seller and the Buyer in writing;
means Dunelm Pharmaceuticals Limited, a company incorporated under the laws of the Republic of Ireland with its registered office located at 28 Georges Street, Drogheda, Co Louth A92 YR77, Ireland; and
- “Seller Affiliate”
means with respect to the Seller, any person, firm, trust, corporation or other entity or combination thereof which directly or indirectly (a) controls, (b) is controlled by, or (c) is under common control with such party.
- 2.1 The Order constitutes an offer by the Buyer to purchase the Products from the Seller in accordance with these Conditions. No Order placed by the Buyer shall be accepted by the Seller other than:
- 2.1.1 the issuing of an Invoice by the Seller to the Buyer; or
- 2.1.2 (if earlier) by the Seller delivering the Products pursuant to Condition 4.1,
at which point and on which date the Contract shall come into existence.
- 2.2 No changes may be made to the Contract without the prior written agreement of the Seller.
- 2.3 Except where terminated earlier in accordance in Condition 11, the Contract shall automatically expire twelve (12) months after its commencement in accordance with Condition 2.1.
- 2.4 Quotations are given by the Seller on the basis that no Contract shall come into existence except in accordance with Condition 2.1. Any Quotation is valid for a period of 30 days from and including its date or, if undated, the date on which the Buyer is deemed pursuant to Condition 12 to receive communication of the Quotation, subject always to the Seller’s right to withdraw the Quotation at any time during this period without reason.
- 2.5 The Seller may perform any of its obligations, including accepting and fulfilling Orders received from the Buyer, through any Seller Affiliate, PROVIDED THAT Orders accepted by a Seller Affiliate in accordance with Condition 2.1 shall be deemed to be placed with the Seller and these Conditions shall apply to such Orders.
- 2.6 The Buyer shall ensure that the details of its Order and any applicable Specifications are complete and accurate, and that the particulars of any Quotation are sufficient to meet the Buyer’s requirements.
- 2.7 Where requested by the Buyer, the Seller will endeavour to provide, at the time of delivery, a Certificate of Conformance confirming manufacture of the Product in accordance with the specification for the Product.
- 2.8 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 2.9 Where Products are to be delivered in instalments, each part delivery or instalment shall be deemed to be sold under a separate Contract.
- 3.1 The title in all Products supplied by the Seller shall remain with the Seller until such time as payment has been received in full (in cash or cleared funds) for:
- 3.1.1 those Products; and
- 3.1.2 all other sums which are or which become due to the Seller from the Buyer under the Contract.
- 3.2 Risk of damage to or loss of the Products shall pass to the Buyer at the time of delivery pursuant to Condition 4.1, or, if the Buyer wrongfully fails to take delivery, then when the Seller attempts delivery of the Products.
- 3.3 After delivery in accordance with Condition 4.1 and until such time as title to the Products passes to the Buyer under Condition 3.1, the Buyer shall hold the Products as the Seller’s fiduciary agent, and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and identified as the Seller’s property. Until that time the Buyer shall be entitled to use the Products in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Products or the medicinal products incorporating the Products, including insurance proceeds, and shall keep all such proceeds, separate from any monies or property of the Buyer and third parties.
- 3.4 The Buyer shall not be entitled to pledge in any way or charge by way of security for any indebtedness any of the Products which remain the property of the Seller, but if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
- 3.5 If, before title in the Products passes to the Buyer pursuant to Condition 3.1, the Buyer becomes subject to any event of insolvency then, provided that such Products have not been resold and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up such Products or medicinal products incorporating the Products and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the relevant Products or medicinal products incorporating the Products are stored in order to recover them.
- 4.1 Unless agreed otherwise in writing between the parties, delivery shall be made ex works (Incoterms 2010) from:
- 4.1.1 the Seller’s (or its designee’s) premises at or around the approximate delivery date stated in the Order and confirmed by the Seller; or
- 4.1.2 where the delivery date is not agreed pursuant to Condition 4.1.1 within five days of the Seller notifying the Buyer that the Order is ready for collection from the Seller’s (or its designee’s) premises.
- 4.2 Delivery dates shall be approximate only and shall not be material terms of the Contract. All costs of transport and packaging, as well as all import duties, sales taxes and other duties whatsoever shall be paid by the Buyer in respect of all Orders, unless agreed otherwise in writing by the Seller prior to delivery.
- 4.3 Delays in the delivery of the Products shall not entitle the Buyer to:
- 4.3.1 refuse to take delivery of the Products; or
- 4.3.2 claim damages; or
- 4.3.3 terminate the Contract, subject always to Condition 11.
- 4.4 The Seller shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Buyer’s failure to comply with its obligations under the Contract.
- 4.5 The Buyer shall keep the Products fully insured to their full replacement value against all risks prudently insurable at least throughout the period between the date of delivery in accordance with Condition 4.1 to the Buyer and the date on which title in the Products ceases to remain with the Seller. The Buyer shall hold any insurance monies received by the Buyer in relation to the Contract on trust for the Seller.
5. Shortage of Products / Damage on Delivery
- 5.1 The Seller warrants that on delivery in accordance with Condition 4.1, the Products shall (a) subject to Condition 4.3, materially conform with the description and quantity of Products ordered and (b) be free from material defects in design, material and workmanship.
- 5.2 Subject to Condition 5.4, if:
- 5.2.1 in respect of a shortage of Products other than within the requirements of Condition 4.3, the Buyer notifies the Seller within 72 hours of delivery for ambient Products, or within 24 hours for refrigerated Products, giving full particulars of the shortage of Products; or
- 5.2.2 in respect of damaged Products, the Buyer (i) gives notice to the Seller in writing within 72 hours of the delivery for ambient Products, or within 24 hours for refrigerated Products, that the Products do not comply with Condition 5.1, (ii) retains damaged Products, in the condition and location in which they were delivered, for inspection and collection by the Seller or its nominated designee and (iii) indicates on the carrier sheet that a Product appears to be damaged,
the Seller shall, at its option, (i) replace the shortage or defective Products or (ii) refund the price of the defective Products in full.
- 5.3 Other than where the Buyer has complied in full with the requirements set out in Condition 5.2, the Seller may, at its sole discretion and without prejudice to any other rights it may have, refuse to accept return of any Products from the Buyer and the Seller shall be under no obligation to offer a refund.
- 5.4 The Seller shall not be liable for the Products’ failure to comply with Condition 5.1 in any of the following events:
- 5.4.1 the Buyer makes any further use of such Products after giving notice to the Buyer in accordance with Condition 5.2.2; or
- 5.4.2 the defect arises because the Buyer fails to comply with the Seller’s reasonable oral or written instructions as to the storage or use of the goods and/or good trade practice regarding the same.
- 5.5 These Conditions shall apply to any replacement Products supplied by the Seller.
6. Conditions of Sale
- 6.1 It is a condition of the sale that the Products are used as a medicinal product or medical devices in accordance with all Applicable Laws, including the terms of any regulatory approval governing the sale or use of the Products.
- 6.2 The Seller disclaims all warranties to the greatest extent permissible by Applicable Laws and Galenicals, Manufacturer’s Specials and chemicals are sold purely on an “as seen” basis
- 6.3 Where the Products are ordered for commercial resale or are provided as samples as specified in the Order, the Buyer shall have:
- 6.3.1 in the case of a defect that is apparent on normal visual inspection (whether or not inspection actually occurs), thirty (30) days from the date of delivery of Products pursuant to Condition 4.1; and
- 6.3.2 in the case of a latent defect (being a defect not discoverable on normal visual inspection), three (3) months from the date of delivery of Products pursuant to Condition 4.1,
to notify the Seller of its rejection of a lot of Products, or part thereof, for failure to comply with any Specifications for the Products. If the Buyer fails to give notice of rejection in accordance with this Condition 6.3, it shall be deemed to have accepted such Products and the Seller shall be under no obligation to accept, return or offer a refund.
- 6.4 In no circumstances shall the Buyer be the agent of the Seller and the Buyer shall indemnify the Seller against the result of any incorrect assumption. The Products may only be resold in their original packaging and livery. No change to any labelling, trade marks, packaging or livery shall be made and the contents shall not be tampered with in any way.
- 6.5 Sales to wholesalers, hospitals and pharmacies are conditional upon the following:
- 6.5.1 Products must be stored in conditions compatible with their eventual usage and as notified by the Seller and in accordance with Applicable Laws;
- 6.5.2 Products must be documented, recorded and stored in such a fashion as to facilitate easy and rapid recall by strength, batch code or product description; and
- 6.5.3 Products must be sold or prescribed only in accordance Applicable Laws, including the terms of any regulatory approval governing the sale or use of the Products.
- 7.1 The price of the Products shall be either: (a) the price specified by the Seller in the Invoice; or (b) as otherwise communicated by the Seller. All prices shown in the Seller’s price list are subject to alteration without notice and exclude delivery costs.
- 7.2 All prices are exclusive of any applicable value added or other sales tax, and these shall be additionally payable by the Buyer.
8. Payment Terms
- 8.1 The Seller shall be entitled to invoice the Buyer in full at any time after an Order has been placed.
- 8.2 The Buyer shall pay the Invoice in either Euro or Pound Sterling, or by Letter of Credit, as agreed in advance in writing with the Seller, within fifteen (15) days of the date of Invoice to a bank account nominated by the Seller, unless already paid via Debit Card / Credit Card. Unless otherwise agreed in writing by the Seller, no deductions whatsoever from the net price on the Invoice shall be allowed.
- 8.3 Should the Buyer fail to make payment in full by the due date then the Seller may: (i) suspend or withhold any further deliveries and/or (ii) charge the Buyer interest on any amount unpaid at the rate of 2.5% per annum above the base rate for the time being of the Allied Irish Banks PLC from and including the day payment was first due until payment in full is received by the Seller.
- 8.4 No payment shall be deemed to have been received until the Seller has received cleared funds in the amount due and paid by the Buyer.
- 8.5 Notwithstanding any other provision of these Conditions, all payments payable to the Seller under the Contract shall become due immediately on its expiry or termination.
- 8.6 Time for payment by the Buyer shall be of the essence of the Contract.
- 8.7 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
- 8.8 The Seller may, without prejudice to any other rights it may have, set off any liability of the Buyer to the Seller against any liability of the Seller to the Buyer.
- 8.9 Payments for products purchased via the Seller’s website are handled externally by PayPal
9. Warranties And Liability
- 9.1 Save as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
- 9.2 Except in the case of death or personal injury caused by the Seller’s negligence or any other liability which cannot be limited by law, the liability of the Seller to the Buyer for any reason pursuant to the Contract (including negligence or breach of statutory duty) shall be limited, at the Seller’s sole discretion, to either: (i) the replacement of any defective Products; or (ii) the cost of the Products to be replaced (if any) in accordance herewith.
- 9.3 In no event shall the Seller be liable for loss of profits.
- 9.4 In no event shall the Seller be liable for any indirect or consequential loss or damage.
- 9.5 The Buyer agrees to indemnify the Seller for any and all losses, costs and expenses, incurred by the Seller including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Seller as a result of or in connection with:
- 9.5.1 any failure by or on behalf of the Buyer to comply with any Applicable Laws, the terms of the Contract, or instructions of the Seller;
- 9.5.2 any claim brought against the Seller for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply of the Products by the Seller and/or the receipt or use of the same by the Buyer; or
- 9.5.3 negligence or intentional misconduct of the Buyer.
10. Force Majeure
- Neither party shall be liable to the other for its failure to perform as herein provided (except for the payment of money) where such failure is the result of industrial dispute, the elements, government action, failure of plant, delay on the part of any independent sub-contractor or Seller or other reason beyond the control of such party (the ‘Force Majeure Event’). Following the Force Majeure Event, the time for performance shall be extended for a reasonable period having regard to the effects of the cause of the Force Majeure Event. In any event and upon written notice of either party, the Contract may be terminated if such Force Majeure Event continues for a period exceeding six months from and including the date on which one party first notified the other of the Force Majeure Event.
- 11.1 Without prejudice to any other rights or remedies which the Seller may have, the Seller may terminate the Contract without liability to the Buyer:
- 11.1.1 on giving one month’s written notice; or
- 11.1.2 immediately on notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment (and remains in default not less than seven days after being notified in writing to make such payment).
- 11.2 Without prejudice to any other rights or remedies which it may have, one party may terminate the Contract without liability to the other party immediately on notice to the other party (the “Defaulting Party”) if the Defaulting Party;
- 11.2.1 commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; or
- 11.2.2 is subject to an event of insolvency, an assignment for the benefit of its creditors, or the initiation of bankruptcy proceedings; or
- 11.2.3 suspends or ceases, or threatens to suspend or cease, all or a substantial part of its business.
- 11.3 On expiry or termination of the Contract for any reason:
- 11.3.1 the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest;
- 11.3.2 in respect of Products supplied in which no invoice has been submitted, the Sellermay submit an invoice which shall be payable immediately on receipt; and
- 11.3.3 the Buyer shall pay (except in cases of termination by the Buyer pursuant to Condition 11.2) to the Seller all costs incurred by the Seller at the date of expiry or termination which cannot be cancelled or avoided.
- 11.4 The termination or expiry of the Contract, however arising, shall be without prejudice to the rights and duties of the parties accrued prior to expiry or termination. Conditions 3.1, 3.2, 9, 11.4, 13.2, 13.7 and 13.8 together with those which expressly or impliedly have effect after termination or expiry, shall continue to be enforceable notwithstanding termination or expiry.
- 12.1 All communications between the parties pursuant to the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
- 12.1.1 in case of communications to the Seller, to the following addresses:
Ireland Trading Address: UK Trading Address: Dunelm Pharmaceuticals Limited
28 George’s Street
Company Registration No: 478640
Dunelm Pharmaceuticals Limited
2 McMillan Close
Saltwell Business Park
Company Registration No: 07035420
Trading under WDA(H)36892
or such other address as notified to the Buyer by the Seller; or
- 12.1.2 in the case of the communications to the Buyer, to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.
- 12.1.1 in case of communications to the Seller, to the following addresses:
- 12.2 Communications shall be deemed to have been received:
- 12.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays in the United Kingdom or the Republic of Ireland) after posting (exclusive of the day of posting); or
- 12.2.2 if delivered by hand, on the day of delivery; or
- 12.2.3 if sent by fax on a working day prior to 16.00 at the time of transmission, or otherwise on the next working day.
- 13.1 Subject to Condition 2.4, no terms of these Conditions are intended to confer a benefit on, or be enforceable by, any person who is not a party to the Contract (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).
- 13.2 The Contract constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.
- 13.3 No failure or delay by the Seller in exercising any of its rights or remedies under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy.
- 13.4 None of these Conditions may be modified unless made by or specifically accepted by the in writing. Any modification proposed or made by any sales or other representatives of the Seller shall be of no effect unless and until such modification is specifically accepted by the Seller in writing.
- 13.5 The Seller may assign or sub-contract the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign, transfer or charge the Contract or any part of it without the prior written consent of the Seller.
- 13.6 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
- 13.7 The construction, validity, and performance of all Contracts and these Conditions shall be governed by the laws of England and any claim or dispute arising therefrom shall be subject to the exclusive jurisdiction of the English courts.
- 13.8 The complete or partial invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of such provision for any other purpose or the remaining provisions hereof.