UK Trade Terms and Conditions
ZENTIVA PHARMA UK LIMITED
STANDARD TERMS OF TRADING
These terms and conditions (the "Conditions") shall govern the supply of goods and products (the "Goods") by Zentiva Pharma UK Limited (the "Company") to a person, firm or company with whom the Company is trading (the "Customer") and shall apply to all dealings in relation thereto.
These Conditions, together with the completed Order accepted pursuant to clause 2.4 form the Contract between the Company and the Customer (the “Contract”). The Contract takes precedence over any terms, conditions or warranties: (a) contained in or referred to in any other documentation or correspondence provided by either party unless otherwise agreed by the parties in writing; or (b) which are implied by law, trade custom, practice or course of dealing. If there is a conflict between these Conditions and an Order, the terms of the Order shall take precedence.
In these Conditions:
“Affiliate” means any person that at such time is controlled by or is under common control of a party. The term ‘control’ (and its grammatical variations) shall mean (i) possession, direct or indirect, through one or more intermediaries, of the power to direct the management or policies of a person, whether through ownership of voting securities, by contract relating to voting rights or otherwise, or (ii) ownership, direct or indirect, through one or more intermediaries, of more than fifty percent (50%) , or any other percentage as per applicable law which enables the exercise of control, of the outstanding voting securities or other ownership interest of such person.
"Business Day" means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for non-automated business;
"Force Majeure Event" means any event, circumstance or cause beyond the affected party's reasonable control including, without limitation, any act of God, strike, riot, war, act of terrorism, fire, flood, shortage of materials at market rates, act of Government, pandemics and/or epidemics or national or regional emergency;
“Notice” has the meaning as defined at clause 12.1; and
"Order" means the Customer's order for the Goods, as set out in the Customer's written purchase order form or the Company’s electronic ordering system, as the case may be.
2. ORDERS AND PRICES
2.1. Unless otherwise specified, quotes given by the Company are valid for five (5) Business Days from the date of issue or if earlier until another quote is issued (i.e. it is superseded) and shall not constitute an offer.
2.2. Prices are as set out in any specific statement or quote made by the Company and should be included on all Orders. The Company may without prior notice to the Customer vary prices prior to or on delivery and whether before or after the relevant Contract is entered into by the parties. An Order is not binding on the Company unless or until accepted by the Company in line with clause 2.4. Once accepted, the Contract cannot be cancelled by the Customer.
2.3. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the particulars of the Order are complete and accurate.
2.4. The Order shall only be deemed to be accepted and an agreement created when the Company issues a written acceptance of the Order or, in the absence of such written acceptance, at the point at which the Company ships the Goods to the Customer from the Company’s premises where the Goods were originally stored.
2.5. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.6. Orders are only accepted by the Company on condition that the Company is entitled to cancel all or part of each Order at its absolute discretion. The Customer shall have no right to compensation in respect of any cancelled Order or part thereof.
2.7. The Company reserves the right to stipulate a minimum amounts of Goods which must be made in an Order at its discretion. Goods will be supplied only in multiples of each standard outer or other relevant unit. If necessary, Orders will be rounded up to the nearest multiple and shall be charged accordingly.
2.8. The Company may deliver the Goods by 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 the Customer to cancel any other instalment but the Company may cancel any other instalment in accordance with clause 2.6.
3.1.To the extent that the Goods are to be manufactured in accordance with a particular specification supplied by a Customer, the Customer shall indemnify and keep indemnified the Company and its Affiliates against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) (together the “Losses”) suffered or incurred by the Company and its Affiliates in connection with any claim made against the Company or its Affiliates for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the manufacture and/or use of the Goods.
3.2. The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.3 Where Goods are manufactured in accordance with a particular specification, the implied terms relating to sale in accordance with description and of satisfactory quality and fitness for purpose shall not apply and the Company shall ensure that the Goods comply with the specification.
4. PRICE AND PAYMENT
4.1. The price payable for the Goods shall be set out in the relevant Order. Payment of accounts by the Customer is made by remittance to ARcollections.GB@zentiva.com, quoting the relevant Customer reference number.
4.2. Payment terms will be notified to the Customer by the Company from time to time and are also stated in the “settlement terms” box printed on the invoice, which will follow dispatch of the Goods. If no payment terms are stated by the Company or in the "settlement terms" box on the invoice, the Customer shall pay each invoice submitted by the Company within 60 days of the date of the invoice.
4.3. Failure of the Customer to pay by the due date shall entitle the Company without prejudice to any other rights it may have to:
4.3.1. suspend any future supply of Goods until settlement is made in full;
4.3.2. apply interest from the due date up to the date of actual payment in full (after as well as before judgement), at the rate of 5 per cent per annum above the base rate of the Bank of England, such interest to be accrued on a daily basis and compounded quarterly;
4.3.3. terminate any Contracts;
4.3.4. deduct amounts owed by the Customer from any sums owed by the Company to the Customer; and/or
4.3.5. resell any Goods not yet delivered to the Customer.
4.4. Settlements by cheques or credit card by the Customer are not accepted. A transfer of funds by the Customer shall not be deemed to be paid until the funds have cleared in the Company’s account. For all settlements and payments the payee is the Company.
4.5. The Customer may not withhold, make deductions from or set-off against payments for any reason.
4.6. Queries by the Customer regarding prices contained in invoices must be made in writing to the Customer Services Department at firstname.lastname@example.org within five Business Days of the date of the invoice.
4.7. Where rebate arrangements have been agreed, the Customer shall comply with its obligations in respect of the same including by supplying relevant data to the Company in order to validate any Customer rebate claims, prior to preparation of the invoice.
5.1. The Company shall, or shall procure a third party to, deliver the Goods to the location specified in the Order in the relevant Contract or such other location as agreed by the Company and the Customer.
5.2. The Goods shall be deemed delivered upon arrival of the Goods at the specified location as agreed pursuant to clause 5.1.
5.3. Any delivery date shall be approximate only and time of delivery shall not be of the essence. The Company shall not be liable for any delay or failure in delivery of the Goods, including, without limitation, any delay or failure in delivery that is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions.
5.4. If the Customer, for any reason other than a Force Majeure Event or the Company’s failure to comply with its obligations under the relevant Contract, fails to accept delivery of the Goods:
5.4.1. delivery of the Goods shall be deemed to have occurred;
5.4.2. the Company shall store the Goods until actual delivery takes place, and shall charge the Customer for all related costs and expenses, including, without limitation, redelivery costs should the Goods be resent out for delivery and insurance; and
5.4.3. if delivery of the Goods does not take place within the subsequent five Business Days of deemed delivery, the Company shall be entitled to deal with the Goods in question in any way the Company sees fit with no liability to the Customer at all.
5.5. If the Customer notices any discrepancies, including but not limited to shortages, overages, or damage when inspecting the Goods on delivery of the Goods, details of this must be reported to the Company in writing (email@example.com) within four (4) Business Days of the date of delivery in line with the Company’s claim process (available on request).
6. RISK AND TITLE
6.1. The risk in the Goods shall pass from the Company to the Customer on commencement of unloading at the specified location agreed pursuant to clause 5.1.
6.2. Title to the Goods shall not pass from the Company to the Customer until the Company has received payment in full for the Goods as set out at clause 4.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1. store the Goods at such specified location agreed pursuant to clause 5.1 and separately from any other goods held by the Customer, and shall clearly identify the Goods as being the Company's property;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods and shall maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.3. notify the Company immediately if it becomes subject to any of the events listed in clause 10.2; and
6.3.4. give the Company such information as the Company may reasonably require from time to time relating to the Goods.
6.5. If the payment for any Goods becomes overdue or on the occurrence of any event referred to in clause 10, the Company or its appointed agent may enter any location under the control of the Customer where the Company reasonably believes the Goods are being kept for the purpose of recovering any Goods held by the Customer. In such circumstances the Customer shall provide access to such location immediately upon request and provide the Company and its appointed agent with all assistance necessary for the recovery of such Goods by the Company and its appointed agent, including without limitation delivering up all Goods in its possession.
7.1. Goods correctly supplied under any Contract may not be returned by the Customer for credit without prior agreement in writing from Zentiva Pharma UK Customer Services Department (firstname.lastname@example.org) who will be able to advise on the arrangement for the return of the Goods and for credit consideration.
8. ANTI-BRIBERY AND ANTI-CORRUPTION
8.1. The Customer shall comply with good business ethics and all applicable national and foreign anti-bribery legislation including the Bribery Act 2010 with respect to any Contract.
8.2. In particular, the Customer shall not offer, promise or give any improper pecuniary or other advantage, whether directly or through intermediaries to any person, for the benefit of that person or of a third party, for the purpose of influencing decisions or actions with respect to any Contract.
8.3. The Customer undertakes to keep detailed and up to date books of account and records of all acts by it in relation to each Contract, for a minimum period of seven (7) years as from the delivery of the last to be delivered Goods under such Contract. Without prejudice to the generality of the foregoing, this obligation shall extend to records of all payments made by the Customer in connection with each Contract. The Customer will ensure that such books of account and records are sufficient to enable the Company to verify the Customer’s compliance with applicable accounting laws and regulations.
8.4. The Customer shall provide training on anti-bribery and anti-corruption legislation to all its employees. The Customer shall ensure that its employees are familiar with the Company’s Code of Ethics and commit to respect the Company´s Code of Ethics and follow the principles on which the Code is built on. The Code is publicly available at the following web page: https://www.zentiva.co.uk/our-commitments.
8.5. Should the Customer intend to use any subcontractors in relation to the performance of its obligations under any Contract and/or with respect to the Goods, it shall conduct prior reasonable due diligence on such subcontractors to ensure that they are compliant with the terms set out in this clause 8 and able to perform the relevant Contract. In addition the Customer shall ensure that the subcontractors are fully aware of any and all applicable national and/or foreign anti-bribery and anti-corruption legislation and agree to be compliant with the same. Any subcontractor of the Customer must commit to comply with anti-bribery legislation and anti-corruption and the Company’s Code of Ethics at least to the same extent as the Customer. Without such commitment, the subcontractor(s) must not fulfil any obligation and/or execute any right of the Company under the Contract or in any way purport to act as the Customer under the Contract. The Customer shall provide evidence of such commitment made by the subcontractor(s), and evidence of compliance with the same, immediately upon the Company’s request.
8.6. Furthermore, the Customer shall not, in connection with its performance under any Contract, directly or indirectly, engage in business with, or provide the Goods to any subcontractor it reasonably knows, or it reasonably presumes to be engaged in any activity sanctioned under any and all applicable national and/or foreign anti-bribery legislation.
8.7. The Customer shall indemnify and keep indemnified the Company and its Affiliates against all Losses suffered or incurred by the Company and its Affiliates as a result of any violation by the Customer or its Affiliates of clause 8.
9. LIMITATION OF LIABILITY
9.1. References to liability in this clause 9 includes every kind of liability arising under or in connection with a Contract including, without limitation, liability:
9.1.1 in contract, tort (including negligence), misrepresentation, restitution or otherwise; and
9.1.2. arising out of any use made or resale of the Goods by the Customer, or of any product incorporating any of the Goods.
9.2 Nothing in these Conditions limits the liability of either Party which cannot legally be limited including, without limitation, liability for:
9.2.1. death or personal injury caused by negligence;
9.2.2. fraud or fraudulent misrepresentation;
9.2.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.2.4. defective products under the Consumer Protection Act 1987; or
9.2.5.any other liabilities to the extent that they are not capable of being excluded or limited by law.
9.3. Nothing in this clause 9 shall limit the Customer’s payment obligations under any Contract.
9.4 Subject to clause 9.2, the Company shall not be liable for any breach by a Customer of any applicable law including, without limitation, any requirements to obtain licences (such as a wholesale dealer licence in accordance with the Human Medicines Regulation 2012) to purchase or offer the Goods for sale to third parties.
9.5. Subject to clause 9.2, the Company shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise for any indirect or consequential loss suffered by the Customer that arises under or in connection with any Contract.
9.6 Subject to clause 9.2, the Company's total liability per claim, under or in connection with a Contract shall not exceed the lower of the amount paid or payable to it under the relevant Contract or €10,000,000.
10.1. Either party may terminate any Contract for convenience by providing at least five Business Days’ Notice.
10.2 The Company may terminate any Contract with immediate effect by Notice to the Customer on or any time after the occurrence of any of the following events:
10.2.1. the Customer commits a material breach of such Contract, and (if the breach is capable of remedy) fails to remedy the breach within five Business Days after receipt of notice in writing from the Company requiring the Customer to do so;
10.2.2. the Customer repeatedly breaches any of these Conditions in one or more Contracts in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to such Conditions;
10.2.3. the Customer fails to comply with any of the anti-bribery and anti-corruption provisions as set out in clause 8 of these Conditions;
10.2.4. the 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 section 123 of the Insolvency Act 1986 (“IA”) (as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA) (or the equivalent in any relevant jurisdiction);
10.2.5 the 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 any of its creditors (including a scheme of arrangement pursuant to Part 26 or Part 26A of the Companies Act 2006) other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or for solvent reconstruction;
10.2.6 the Customer applies to court for, or obtains, a moratorium under Part A1 of the IA;
10.2.7 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer’s company other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or for solvent reconstruction;
10.2.8 an application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or an administrator is appointed over the Customer;
10.2.9 the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
10.2.10 a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
10.2.11 a creditor or encumbrancer of the 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 ten Business Days;
10.2.12 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2.4 to clause 10.2.11 (inclusive); or
10.2.13 the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business.
10.3. Termination of a Contract does not affect a party's accrued rights and obligations as at the date of the termination of such Contract.
11. FORCE MAJEURE
11.1. Provided it has complied with clause 11.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under a Contract (other than an obligation to make a payment) by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of the affected Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
11.2. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
11.3. The Affected Party shall:
11.3.1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the affected Contract; and
11.3.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
11.4. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations under any Contract(s) for a continuous period of more than thirty (30) days, the party not affected by the Force Majeure Event may terminate the relevant Contract(s) by giving written Notice to the Affected Party.
12.1. Any notice from one party ("Sender") to the other party ("Recipient") which is required to be given under any Contract shall be in writing, signed on behalf of the Sender and be addressed to the Recipient at its registered office address set out on the latest Order or invoice ("Notice").
12.2 Notices shall be delivered by hand or sent by registered mail (including airmail) and satisfactory proof of such delivery or sending shall be retained by the Sender.
12.3. Any Notice shall be deemed to have been served: if delivered by hand, at the time and date of delivery and if sent by registered mail (including airmail), five (5) days from the date of posting.
13.1. No variation of any Contract shall be effective unless made in writing and signed by or on behalf of each of the parties by their duly authorised representatives.
13.2. The Customer may not assign, transfer or sub-contract any Contract without prior consent of the Company. The Company may sub-contract, transfer out or assign any part of a Contract without the prior written consent of the Customer.
13.3. The Contract constitutes the entire agreement between the Company and the Customer with respect to the Goods to which it relates. The Contract shall supersede any previous agreements or understandings between the Company and the Customer in relation to the same Goods whether written or oral.
13.4. No failure or delay by a party to exercise any right or remedy provided under any 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.
13.5. If any provision of a Contract is or becomes invalid, illegal or unenforceable, it shall be modified to the minimum extent necessary to make it valid, legal and enforceable, and the validity and enforceability of the rest of that Contract shall otherwise remain unaffected.
13.6. A person who is not a party to a Contract may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
13.7. Any Contract(s) and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. The parties agree that the courts of England and Wales shall have the exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with each Contract or its subject matter or formation.