In these conditions “the Goods” shall mean all products sold or supplied by Smartway Pharmaceuticals Limited (“SPL”) to Customer in accordance with these conditions and will include, but shall not be limited to, pharmaceuticals, surgical and other instruments, single-use products and other products.
Any agreement for the sale or supply of Goods shall be binding to all parties and subject to these conditions and, unless otherwise expressly agreed in writing, these conditions shall override any previous terms and conditions stipulated, incorporated or referred to by the Customer in any negotiations with SPL.
These conditions embody the entire agreement between SPL and the Customer and accordingly any promises, representations or understandings not expressed herein shall be of no effect.
No variation of these conditions shall be effective unless expressly agreed, in writing, and signed by SPL’s and the Customer or the Customer’s duly authorised representative.
No forbearance or delay by either party in or before enforcing these terms shall prejudice its rights. No waiver of any right or breach of these terms shall be effective unless in writing and signed by the party making the waiver and any such waiver shall not be construed as a waiver of any other right or breach.
The customer will assume full responsibility, having established all the necessary authorisation from all relevant authorities in the designated territories including USA and Canada for the importing, purchasing, selling distributing and marketing of the product.
Delivery days will be as agreed by SPL and the Customer.
All the goods will be supplied on the basis of purchase order received for the current month. We reserve the right to limit the quantities of any product supplied, subject to availability.
Deliveries requested by Customers on other days will be by Courier at the Customer’s expense and so confirmed by the customer in writing.
Goods will not be sold on a sale or return basis.
Return of goods
SPL shall be under no obligation to accept return of Goods ordered by the Customer except:
- In the event of any error on SPL’s part as to the quantity, pack size, strength of product or the nature of Goods delivered or
- In accordance with clauses 6.2 hereof.
Return of Goods for any other reason shall require SPL’s prior written consent. SPL may, in its absolute discretion, decline return of Goods in the following circumstances:
- In SPL’s opinion the request for return, by the Customer, is not of a bona fide nature;
The Goods have been used or are damaged;
- If the Goods required monitored temperature controlled storage and appropriate storage was not adhered to nor relevant cold-storage data supplied to confirm storage or cold-storage transport conditions.
- The Goods are not specifically identified by an Invoice Number
- The Goods have been retained by the Customer for a period in excess of 48 hours.
All Goods returned under this clause shall be accompanied by a Delivery Error /Returns Authorisation report quoting:
- The Customers’ name and address;
- Date of order and date of return of goods.
- The quantity and description, product code, Batch number and expiry date.
- The invoice number;
- The reason for the return.
All Goods returned under this clause shall be accompanied by a Delivery Error /Returns Authorisation report quoting name, address, quantity, Product Code.
No returns shall be accepted for short dated or expired stock unless the stock delivered by SPL was due to an error.
All transfer orders, special orders and orders relating to unlicensed products will be delivered as received and no refusals or returns will be accepted under any circumstances.
SPL may, at any time, in its absolute discretion and acting reasonably after a recall has been requested by a competent body, recall any Goods supplied to the Customer.
Any such recall may, in the first instance, be verbal but all such recalls will be confirmed in writing as soon as reasonably practicable thereafter.
The cost of collection of any Goods subject to Recall shall be borne by SPL.
SPL shall make all necessary arrangements for collection, or return, of recalled Goods and the Customer will render all reasonable assistance in this regard.
In circumstances where recalled Goods cannot be replaced by SPL within a reasonable period, a Credit note will be issued to the Customer, pending a credit from the manufacturer, to the value of any Goods returned under the provisions of this Clause.
SPL shall not be liable for any delay in delivery that:
- Is of reasonable length;
- Is caused by circumstances referred to in clause 6.2 below.
If delivery by SPL is prevented by, terrorism, flood, natural disasters, war, fire, act of God, industrial action, manufacturer delay, prohibition or restriction by a competent authority, failure by a third party to deliver the goods, materials or services to SPL and by any cause beyond SPL’s control, then SPL shall not be liable for any such failure to deliver the Goods, either on a specified date or at all.
In the event that SPL is delayed or prevented from delivering the Goods as set out in clause 6.2 SPL shall, as soon as practicable, give notice to the Customer of the cause of such prevention and, failing an agreement for a new delivery date, the order shall be deemed cancelled.
In the event of SPL being delayed or prevented from delivering only part of the order under Clause 6.2 the provisions of Clause 6.3 above shall apply to that part only.
Delivery can be withheld by SPL in instances whereby the Customer is on credit hold or overdrawn on any limited account held within SPL.
Where a delivery is not in accordance with the accompanying Delivery Note, SPL will request action as set out in clause 4.
All transfer orders will be delivered, as received and no refusals or returns will be accepted.
Loss or damage in transit
SPL shall not be liable, in respect of Goods delivered by courier, for loss or damage to Goods in transit unless:
- Such loss, or damage, is caused by SPL’s negligence; and
- The carrier and SPL are notified of the loss, or damage, in writing within 48 hours of the designated delivery date; and
In the case of damage to Goods, those Goods are returned to SPL in accordance with the terms set out in clause 4 above. Will be replaced by, SPL shall not be liable, in respect of Goods delivered by courier, for loss or damage to Goods in transit unless Such loss, or damage, is caused by SPL’s negligence; and The carrier and SPL are notified of the loss, or damage, in writing within 48 hours of the agreed delivery date;
Upon delivery or collection of the goods the customer will assume complete liability for that delivery or collection and any risk, vested in the Goods, shall pass from SPL to the Customer upon that delivery or collection.
SPL retains the a beneficial interest in the goods until payment is received in full, however the insurance risk will transfer on the customer upon deliver or collection of the goods.
SPL will use all reasonable measures to update its pricing structure promptly and accurately and where applicable, advise customers of any changes via electronic medium including, email, fax or phone, within a period not exceeding thirty days. This will be actioned by SPL’S customer services department.
SPL, however, reserves the right to alter prices without immediate notification as a consequence of alterations in contracts with existing suppliers, new supplier contracts being processed, or through product replacement, discontinuation of product or a new product being issued by supplier.
Prices and payment
The Customer shall settle (with value in SPL’s bank account) all invoices on Pro forma or COD basis, unless agreed otherwise in writing.
Online bank transfer is preferable. Any orders will not be processed without further advise in case of an overdue account.
In the event of the Customer’s failure to settle any invoice by the due date, SPL reserves the right:
- To charge interest on the outstanding amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998.
Notwithstanding that risk in all Goods supplied by SPL may have passed to the Customer upon delivery or collection; the title to all Goods shall be retained by SPL until receipt of payment in full.
If the Customer is in breach of any terms and conditions agreed with SPL, or if a receiver or administrator is appointed over all or any part of the Customer’s assets, business or undertaking, SPL shall have the right, at any time, to repossess the whole, or any part, of any Goods in respect of which title remains vested in SPL and, for that purpose, to enter the premises occupied by the Customer or under the Customer’s control. Exercise of this right shall be without prejudice to any other rights that SPL may have.
SPL shall be entitled to deduct from any outstanding payment due to the customer, any sum which is owed by the customer to SPL under the terms of this agreement.
Subject to the terms hereof and to Section 12 of the Sale of Goods Act 1979
All conditions and warranties, express or implied, as to the quality, or fitness for any purpose of the Goods are hereby expressly excluded; and
SPL shall not be liable for any loss or damage sustained by the customer whether directly or indirectly.
Any statements as to quality of Goods made by SPL will not form part of the description of the Goods.
Without prejudice to the aforesaid, in no circumstances whatever shall SPL’s liability or the amount of any indemnity, damages, or compensation payable by SPL on any claim or claims whatsoever concerning or relating, directly, or indirectly to the Goods and including but not limited to claims based on negligence, misrepresentation, breach of contract, or warranty, exceed in total, SPL’s invoice price of the Goods in question, excluding VAT.
Nothing in these Conditions shall be taken as excluding or restricting our liability for death or personal injury resulting from SPL’s negligence or that of SPL’s employees or duly authorised agents.
The parties undertake that they shall at all times keep confidential and shall not use or disclose any information provided to them by the other party in connection with the importing, purchasing, selling, distributing and marketing of the goods, save as may be necessary for the proper performance of the provision of the Goods or as may be required by law or any regulatory authority in the designated territory
Law and jurisdiction
These terms shall be governed by and construed in all respects in accordance with English law and the parties hereto submit SPL to the exclusive jurisdiction of the Courts of England and Wales.
It is a policy of both parties to comply with all laws and regulatory requirements affecting its business including anti-corruption and anti-bribery laws within the United Kingdom. Both parties shall:
- comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti- corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”) that are applicable within the United Kingdom
- not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
- have and shall maintain in place throughout the term of the Contract it’s own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements of that Act and will enforce the where appropriate
- promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by that party in connection with the performance of the Contract;
breach of this clause shall be deemed a material breach of the Contract which is incapable of remedy and in the event of such a breach a party so affected shall have the right to immediately terminate Contract.