Terms of Business
These terms shall apply to all contracts for the sale of products (the “Products”) by Aclardian Limited (“Aclardian”) to the party with whom it is dealing (the “Customer”) to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation order or similar document.
No variation of these shall be binding unless agreed in writing between the authorised representatives of the Customer and Aclardian.
Aclardian’s employees or agents are not authorised to make any representations concerning the Products unless confirmed by Aclardian in writing. In entering into the contracts the Customer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these terms affects the liability of either party for fraudulent misrepresentation.
Any advice or recommendation given by Aclardian or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Products is followed or acted upon entirely at the Customer’s own risk, and Aclardian shall not be liable for any such advice or recommendations.
Any typographical, clerical or other error omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Aclardian shall be subject to correction without any liability on the part of Aclardian.
2. ORDERS AND SPECIFICATIONS
No order submitted by the Customer shall be deemed to be accepted by Aclardian unless and until confirmed by an Order Acknowledgement.
The Customer shall be responsible to Aclardian for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving Aclardian any necessary information relating to the Products within a sufficient time to enable Aclardian to perform the contract in accordance with its terms.
No order which has been accepted by Aclardian may be cancelled by the Customer except with the prior written consent of Aclardian which may be given on such terms as Aclardian shall in its sole discretion determine.
3. PRICE OF THE PRODUCT
The price of the Products shall be the price quoted by Aclardian (whether the quotation is provided orally by an authorised representative of Aclardian or in writing). However all prices are subject to final written confirmation.
Aclardian reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to Aclardian which is due to any factor beyond the control of Aclardian (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties), any change in delivery dates, quantities or specifications for the Products which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Aclardian adequate information or instructions.
All prices quoted are subject to value added tax at the standard rate prevailing at the date of supply.
Unless otherwise agreed, all orders are supplied on an ex-works basis and are subject to additional delivery and documentation charges.
4. DELIVERY OF THE PRODUCTS
Delivery of the Products shall be made by Aclardian delivering the Products to the place agreed with the Customer for delivery.
All despatch and delivery dates are approximate only and do not form part of the contract. Time for delivery shall not be of the essence unless previously agreed by Aclardian in writing and late delivery shall not entitle the Customer to cancel the order.
Aclardian may make and the Customer shall accept partial deliveries of Products ordered. Failure by Aclardian to make any one or more deliveries in accordance with the contract or any claim by the Customer in respect of any one or more deliveries shall not entitle the Customer as a whole to treat the contract as a whole as repudiated.
Unless agreed in writing by Aclardian Products will not be accepted for return unless one of the following reasons applies: (a) to correct an error committed by Aclardian in ordering or delivery, (b) in response to a Product or batch recall, (c) where Products are alleged to be faulty, or (d) where packaging is alleged to be damaged. In each case the reason should be notified to Aclardian within three working days of the Customer receiving delivery of the Products and the following procedures followed:
Returns to correct an error in delivery ordering
The Customer must obtain prior authorisation for the return in writing.
The Products must be in perfect condition, not marked in any way or unsealed, and should not show any evidence of having been tampered with.
In the event that any of the above conditions are not met, Products will not be accepted for return except at Aclardian’s discretion.
Returns in response to a Product or batch recall
Customers will be notified by Aclardian of any recall. Products will only be accepted according to the specific instructions and the time frame provided on the recall form.
Products must be clearly identified as returns relating to a Product or batch recall.
Credit or replacement will be issued as notified by Aclardian.
Returns because a Product is alleged to be faulty.
Customers should notify Aclardian by telephone as soon as reasonably possible after discovering the alleged fault and send a written report with details of the alleged fault.
If the Product is faulty, credit or replacement will be issued as notified by Aclardian.
Returns because packaging is alleged to be damaged.
Customers should notify Aclardian by telephone and as soon as reasonably possible after discovering the alleged damage and send a written report with details of the alleged damage.
If the damage has been caused by Aclardian or its carrier, credit or replacement will be issued as notified by Aclardian.
RISK AND PROPERTY
Risk of damage to or loss of the Products shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Products, the time when Aclardian has tendered delivery of the Products.
Notwithstanding delivery and the passing of risk in the Products, or any other provision of these terms, the property in the Products shall not pass to the Customer until Aclardian has received in cash or cleared funds payment in full of the price of the Products and all other Products agreed to be sold by Aclardian to the Customer for which payment is then due.
Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as Aclardian’s fiduciary agent and bailee, and shall keep the Products separate from those of the Customer and third parties and properly stored, protected and insured and identified as Aclardian’s property, but the Customer may resell or use the Products in the ordinary course of its business.
Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been used or resold), Aclardian may at any time require the Customer to deliver up the Products to Aclardian and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Products are stored and repossess the Products.
The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of Aclardian, but if the Customer does so all moneys owing by the Customer to Aclardian shall (without limiting any other right or remedy of Aclardian) forthwith become due and payable.
PAYMENT & CREDIT TERMS
Subject to any special terms agreed between the Customer and Aclardian, Aclardian shall be entitled to invoice the Customer for the price of the Products on or at any time after the dispatch of the Products.
Payment is due on demand, but in any case, for Customers with approved account facilities, must be made no later than the due date listed on the relevant invoice. If the Customer does not pay the price on the due date Aclardian may bring an action for the price even though property in the Products has not passed to the Customer.
The Customer shall pay the price of the Products by the due date of the invoice, notwithstanding that delivery may not have taken place and the property in the Products has not passed to the Customer. The time of payment of the price shall be of the essence of the contract.
If the Customer does not abide by any credit terms agreed by Aclardian, Aclardian reserves the right to withdraw credit facilities without notice.
If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available, Aclardian shall be entitled to: (a) cancel the contract or suspend any further deliveries to the Customer, (b) appropriate any payment made by the Customer to such of the Products (or the Products supplied under any other contract between the Customer and Aclardian) as Aclardian may think fit (notwithstanding any purported appropriation by the Customer), (c) charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per month, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest), (d) charge the Customer any costs incurred by Aclardian in the course of collecting outstanding moneys due to Aclardian from the Customer.
Payment by cheque or other negotiable instrument is ineffective until such instrument is honoured and our bank account is credited with the amount due.
Aclardian reserves the right to charge the Customer £20.00 for each unpaid item either returned or represented at Aclardian’s bank or such greater sum as shall represent the cost incurred by Aclardian by reason of such dishonour or failure as aforesaid. Any outstanding account balance will become immediately due for payment.
INSOLVENCY OF CUSTOMERS
Aclardian shall be entitled, without prejudice to any other rights or remedies available to it, to cancel any contract to which these terms apply in whole or in part or to suspend deliveries thereunder if the Customer is in breach of any term of such contract or becomes insolvent or a Receiver, Manager or Administrative
Receiver is appointed to the whole or any part of the undertaking, business or assets of the Customer or if any petition is presented applying to the court for the winding up of, or for an Administrative Order to be made in relation to, the Customer or a resolution is passed for its winding up or dissolution, or the Customer becomes bankrupt or enters into a voluntary arrangement with its creditors, and if Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Subject as expressly provided in these terms, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Except in respect of death or personal injury cased by Aclardian’s negligence, or liability for defective products under the Consumer Protection act 1987, Aclardian shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Aclardian, its employees or agents or otherwise) which arise out of in connection with the supply of the Products (including any delay in supplying or any failure to supply the Products in accordance with the contract or at all) or their use or resale by the Customer, and the entire liability of Aclardian under or in connection with the contract shall not exceed the price of the Products, except as expressly provided in these terms.
Aclardian shall not be liable to the Customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Aclardian’s obligations in relation to the Products, if the delay or failure was due to any cause beyond Aclardian’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond Aclardian’s reasonable control; act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Aclardian or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
RESTRICTIONS ON USE
For Products that are unlicensed relevant medicinal products or “Specials” as described in Schedule 1 of The Medicines for Human Use (Marketing Authorisations etc.) Regulations 1994/SI 3144 as amended, the Customer undertakes to adhere to MHRA Guidance Note 14. In particular the Customer represents that such Products are requested by a doctor, dentist or supplementary prescriber registered in the United Kingdom for use by his individual patients on his direct personal responsibility
The Products are intended for use solely within the United Kingdom and the Customer alone shall be responsible for compliance with any laws, regulations or requirements in force in relation to use or supply of Products outside of the United Kingdom.
If any provision of this contract is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this contract and the remainder of these provisions in question shall not be affected.
No waiver by Aclardian of any breach of the contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
The headings in these terms are for convenience only and shall not affect their interpretation.
Any notice required or permitted to be given by either party to the other under these terms shall be in writing addressed to that other party at its registered office or principal place of business or such other place as may, at the relevant time, have been notified pursuant to this provision to the party giving the notice.
This contract shall be governed by the laws of England and the Customer agrees to submit to the exclusive jurisdiction of the English Courts.
Aclardian Limited, Highfield Court, Church Lane, Madingley, Cambridge CB23 8AG