Terms and Conditions of Sale

Terms and Conditions of Sale - The Customer’s attention is drawn in particular to the provisions of clause 14.

1 Definitions and interpretation

1.1 In these Conditions, the following definitions apply:

“Conditions” means the terms and conditions set out in this document, as amended from time to time in accordance with clause 17.3;

“Contract” means the contract for the supply of Goods formed by Pharma-e’s acceptance of the Order (which, however made or communicated, shall be deemed made subject to these Conditions);

“Customer” means the person, company, nominated agent or other body placing an Order, either directly or on behalf of another, with Pharma-e;

“Goods” means the goods as set out in the Order;

“Healthxchange” means Healthxchange Pharmacy UK Limited of 235 Old Marylebone Road, London NW1 5QT registered in England with Company No. 01999872;

“Instructions” means the detailed written instructions regarding how to store and use the Goods including, without limitation, any dosage instructions and any Use by Date as supplied with the Goods (where applicable);

“Intellectual Property” means all patents, rights to inventions, copyright and related rights, trade marks, trade names, copyright, rights in designs and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

“Order” means the order placed by the Customer for the supply of Goods;

“Pharma-e” means Pharma-e Limited of Martello Court, Admiral Park, St. Peter Port, Guernsey GY1 3HB registered in Guernsey with Company No. 36207;

“Specification” means the product specification for the Goods;

“Use by Date” means, where applicable, the date after which the Goods should not be used, as marked on the Goods;

“VAT” means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

1.2 In these Conditions the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality;

(b) a reference to a party includes its personal representatives, successors and permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted; and

(d) 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.

2 Supply of the Goods

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or to incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 Each Order for Goods by the Customer shall be deemed to be an offer by the Customer to purchase the Goods subject to these Conditions.

2.3 The Customer acknowledges and agrees that any and all of Pharma-e’s obligations and rights under the Contract and these Conditions (including, without limitation, accepting Orders, and delivering, invoicing and receiving payment for any Goods), may be performed and/or enforced by Healthxchange acting on Pharma-e’s behalf. Notwithstanding the foregoing, the Contract will at all times be between Pharma-e and the Customer as contracting parties.

2.4 The Contract shall be deemed to have been entered into upon receipt by the Customer of a Pharma-e order acknowledgement or when Pharma-e delivers the Goods, whichever is the earlier. For the avoidance of doubt, Pharma-e reserves the right to not supply the Goods notwithstanding that the Customer may have submitted an Order.

2.5 No representative, agent or other person has Pharma-e’s authority to vary, amend or waive any of these Conditions on behalf of Pharma-e and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless agreed to in writing by a director of Pharma-e.

2.6 The Customer shall ensure that the details of its Order are complete and accurate.

3 Private Prescriptions

3.1 Unless Pharma-e otherwise notifies the Customer, Goods supplied by Pharma-e to a Customer on a private prescription in the UK, either directly or to their appointed agent, will be dispensed within the UK and supplied by Pharma-e via a home delivery service at the point of delivery in accordance with condition 9. Notwithstanding the foregoing, some Goods may be dispensed and supplied by Pharma-e in Guernsey for import by the Customer, and Pharma-e shall notify the Customer if such event is to occur.

3.2 The Customer or their appointed representative may send a copy of the prescription for the Goods to Pharma-e by fax subject to the Customer ensuring the original prescription is sent to Pharma-e by first class post within 48 hours of transmission of such fax.

3.3 Prescriptions for Goods shall contain the signature of a bona fide qualified and registered physician, dentist or nurse prescriber and shall meet any and all applicable regulatory and other requirements prescribed by law, rules, regulations and codes of conduct.

3.4 All Goods supplied by Pharma-e against a prescription are for the personal use of the named patient and are not for re-sale.

4 Rates and Payment

4.1 Unless otherwise agreed in writing by Pharma-e, the price payable for the Goods shall be stated in Pharma-e’s price list provided to the Customer from time to time (or quotation relating to the Goods), but Pharma-e reserves the right to alter such prices without prior written notice to the Customer.

4.2 Unless otherwise agreed in writing by Pharma-e, the price for the Goods is exclusive of the cost of delivery, VAT, customs duties and all other taxes, duties and expenses in respect of the Goods all of which shall be added to the price payable by the Customer.

4.3 Where the Customer pays for any Goods by credit or debit card, Pharma-e shall be entitled to charge the Customer an additional 1.5% of the value of the Order for such Goods.

4.4 Time of payment shall be of the essence of the Contract.

4.5 Unless otherwise agreed by Pharma-e in writing, payment by the Customer to Pharma-e shall be made in advance of delivery of the Goods pursuant to condition 9 to the Customer. If the Customer is acting as an appointed agent on behalf of a patient, the appointed agent shall be liable for and shall make payment on behalf of the patient. For the avoidance of doubt, if the patient does not pay the appointed agent for the Goods, the Customer shall still be liable to Pharma-e for payment of such Goods.

4.6 Without prejudice to any other rights or remedies Pharma-e may have, if the Customer fails to pay Pharma-e on the due date for payment, Pharma-e may:

(a) charge interest on any amounts overdue at the rate of 4% per annum above the base rate of the HSBC plc, as applying from time to time. Such interest shall accrue on a daily basis from the due date for payment until receipt by Pharma-e of the full amount outstanding, whether before or after judgment, and shall compound monthly; and/or

(b) suspend delivery of any and all Goods under the Contract and/or any other contract with the Customer.

4.7 No payment shall be deemed to have been received until Pharma-e or Healthxchange acting on its behalf (as applicable) has received cleared funds.

4.8 All payments payable to Pharma-e under the Contract shall become due immediately on its termination despite any otherprovision.

4.9 The Customer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.

4.10 VAT will be applied to all invoices for the Goods except where dispensed against an original prescription in the UK.

5 Intellectual Property Rights

5.1 The Customer acknowledges that any and all Intellectual Property in and relating to the Goods, Pharma-e and / or Pharma-e’s business belong solely to Pharma-e or its licensors (as applicable) and shall remain entirely in the ownership or control of Pharma-e. Nothing said or done by either party shall constitute the transfer of any such rights.

6 Description

6.1 All samples, drawings, descriptive matter, specifications and advertising issued by Pharma-e and any descriptions or illustrations contained in Pharma-e’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

7 Pharma-e’s obligations

7.1 Subject to condition 7.2 and 7.3 Pharma-e warrants that the Goods will materially meet the Specification where the Goods are stored and used in strict accordance with condition 8 below.

7.2 Subject to clause 7.3, if:

(a) the Customer gives notice in writing to Pharma-e within a reasonable time that some or all of the Goods do not comply with the warranty given in the above condition 7.1;

(b) Pharma-e is given a reasonable opportunity of examining such Goods; and

(c) the Customer, if asked to do so by Pharma-e, returns such Goods to Pharma-e’s place of business, as shall be notified to the Customer, at the Customer’s cost, Pharma-e shall, at its option, replace the defective Goods, or refund the price of such defective Goods.

7.3 To the fullest extent permitted by law, Pharma-e does not warrant or give any guarantee:

(a) temperature sensitive Goods which are dispatched by Pharma-e on a Friday will meet the Specification; and

(b) the Goods will be fit for purpose and it shall be for the Customer to determine in its sole discretion whether the Goods are fit for the Customer’s purpose prior to placing an Order.

8 Use and Storage of the Goods

8.1 The Customer warrants and undertakes:

(a) to store and use the Goods strictly in accordance with the Instructions; and

(b) to not use the Goods after the Use by Date.

8.2 Pharma-e does not warrant or give any guarantees that the Goods will meet the Specification where the Customer does not store and use the Goods in accordance with the Instructions.

9 Delivery

9.1 Pharma-e shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”).

9.2 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location.

9.3 Any dates specified by Pharma-e for delivery of the Goods are intended to be an estimate and time for delivery is not of the essence and shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. Pharma-e shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event (as defined in clause 17.2) or the Customer’s failure to provide Pharma-e with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

9.4 If for any reason the Customer fails to accept delivery of any of the Goods or Pharma-e is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by Pharma-e’s negligence) at the point Pharma-e was ready to deliver the Goods;

(b) the Goods shall be deemed to have been delivered; and

(c) Pharma-e may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

9.5 Pharma-e may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

9.6 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

9.7 Except as set out in these Conditions, the Customer shall not have the right to return unwanted Goods to Pharma-e in exchange for a refund.

10 Non-delivery

10.1 The quantity of any consignment of Goods as recorded by Pharma-e upon despatch from Pharma-e’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence proving the contrary.

10.2 From the date of physical delivery of the Goods to the Customer pursuant to condition 9, the Customer shall have a maximum of one day to check the condition of the Goods.

10.3 Pharma-e shall not be liable for any non-delivery (“Non-Delivery”) (even if caused by Pharma-e’s negligence) unless the Customer gives written notice to Pharma-e of the Non-Delivery within one day of the date when the Goods would in the ordinary course of events have been received.

10.4 Any liability of Pharma-e for Non-Delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding the fee paid for such Goods.

11 Risk / Title

11.1 Risk in the Goods shall pass at the point of delivery in accordance with condition 9.2.

11.2 Ownership of the Goods shall not pass to the Customer until Pharma-e has received payment in full of all sums due to it in respect of:

(a) the Goods; and

(b) all other sums which are or which become due to Pharma-e from the Customer under this or any other contract.

11.3 Until ownership of the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as Pharma-e’s bailee;

(b) store the Goods in such a way that they remain readily identifiable as Pharma-e’s property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;

(d) maintain the Goods in satisfactory condition and insure the Goods and keep them insured on Pharma-e’s behalf for their full price against all risks with an insurer that is reasonably acceptable to Pharma-e and upon request from Pharma-e, to provide written evidence of such; and

(e) hold all proceeds from sale of the Goods in a designated account (of which the Customer shall provide Pharma-e with details) until ownership has passed to the Customer in accordance with Condition 11.2.

11.4 The Customer grants Pharma-e, Healthxchange and their respective agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where ownership of the Goods has not passed to the Customer to recover them.

12 Permission

12.1 The Customer undertakes and warrants that it has obtained, at its own cost, all necessary permissions, certificates, licences, permits and consents required by any and all applicable laws, orders and regulations relating to the Goods.

13 Change Control Procedure

13.1 In the event that the Customer wishes to make any changes to any aspect of an Order or the Contract, including but not limited to the volume or description of Goods, it must notify Pharma-e of such changes in writing (“Change Request”).

13.2 On receipt of a Change Request Pharma-e will, within 14 days, notify the Customer in writing as to whether it accepts the Change Request and if it is willing to accept the Change Request will notify the Customer of the increase or decrease of the cost and the relevant changes that need to be made to the Contract. Pharma-e is under no obligation to accept any changes.

14 Liability

14.1 This condition 14 sets out the entire financial liability of Pharma-e (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract; any use or resale made by the Customer of any Goods; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

14.2 Nothing in these Conditions limits or excludes the liability of Pharma-e for: death or personal injury resulting from Pharma-e’s negligence; or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Pharma-e; or for any liability that, by law, cannot be limited or excluded.

14.3 Except as set out in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

14.4 Subject to condition 14.2:

(a) Pharma-e fully excludes all liability where the Customer does not use and store the Goods in strict accordance with condition 8;

(b) Pharma-e shall bear no responsibility and fully excludes all liabilities in respect of how the Customer and/or the patient uses the Goods and/or how the Goods are prescribed;

(c) Pharma-e shall not be liable, whether in contract, tort (including negligence) breach of statutory duty or otherwise, for any: loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

(d) Pharma-e’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to the price paid or payable for the relevant Goods.

15 Confidentiality & Data Protection

15.1 The Customer shall at all times keep secret and confidential all Intellectual Property and technical or commercial know-how, specifications, formulas, inventions, processes, initiatives, business and trade secrets, methods of doing business, customer lists and all other information of a confidential nature which have been disclosed to the Customer or the Customer’s agent by Pharma-e, Healthxchange, or their respective employees, agents or sub-contractors and any other confidential information concerning Pharma-e’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to Pharma-e, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

15.2 The above clause 15.1 shall not apply to confidential information which is in or subsequently enters the public domain otherwise than as a result of unauthorised disclosure by the Customer or any other person.

15.3 This condition 15 shall survive termination of the Contract, however arising.

15.4 Pharma-e shall at all times endeavour to comply with the Data Protection Act 1998 (the “Act”) in respect of any Personal Data (as defined in section 1 of the Act) Pharma-e receives from the Customer.

15.5 The Customer acknowledges and agrees that Pharma-e may use the Personal Data it receives from the Customer for the purpose of fulfilling its obligations under the Contract and the Customer consents to Pharma-e using such Personal Data, and permits third party pharmaceutical manufacturers nominated by Pharma-e to use such Personal Data, for promotional and marketing purposes. Notwithstanding the foregoing, credit/debit card and patient details supplied by the Customer to Pharma-e shall be not be passed on to such third parties.

15.6 The Customer shall have the right to ask Pharma-e not to process its Personal Data and to correct any inaccuracies in such Personal Data. The Customer can exercise such rights in accordance with the Act by contacting Pharma-e in writing at: Data Protection Officer, Pharma-e Limited, Healthxchange Pharmacy, Albert House, South Esplanade, Guernsey GY1 1AW and paying a fee of £10.

16 Termination

16.1 Pharma-e may (without prejudice to any other rights) terminate the Contract by written notice to the Customer:

(a) if the Customer commits a material breach of any provision of the Contract which is not capable of remedy;

(b) if the Customer commits a material breach of any provision of the Contract which is capable of remedy and fails to remedy such breach within 30 days of receipt of a notice from Pharma-e specifying the breach; or

(c) if the Customer becomes bankrupt, insolvent, makes an arrangement or compounds with its creditors or shall have distress or execution levied upon its property or is wound up or goes into liquidation (except for the purposes of a bona fide reconstruction or amalgamation) or shall have a receiver administrative receiver or administrator appointed over the whole or any part of its assets or shall suffer the appointment of any similar person under the laws of its domicile.

16.2 The exercise of the rights granted under condition 16.1 shall not prejudice or affect any right of action or remedy which may have already accrued or may accrue thereafter to Pharma-e.

17 General provisions

17.1 Each provision of the Contract is severable and distinct from the others and if any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of the Contract, but the validity, legality and enforceability of all other provisions of the Contract shall not otherwise be affected or impaired, it being the parties’ intention that every provision of the Contract shall be and remain valid and enforceable to the fullest extent permitted by law.

17.2 Pharma-e shall have no liability to the Customer under the Contract if it, or Healthxchange acting on its behalf, is prevented from or delayed in performing any of its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Pharma-e or any other party), failure of a utility service or transport network, act of God, act of terrorism, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors (“Force Majeure Event(s)”).

17.3 No variation of the Contract shall be effective unless it is in writing, refers specifically to the Contract and is executed by a duly authorised representative of each party.

17.4 Failure or delay of a party to exercise or enforce any right or remedy under the Contract shall not be deemed to be a waiver of that right or any other right, nor operate to bar or restrict exercise or enforcement of it or any other right at any time or times thereafter. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17.5 Each party warrants to the other that:

(a) these Conditions and the Contract constitute the entire agreement and understanding between the parties and supersede any previous agreement between them relating to the matters contained in these Conditions and the Contract (which shall be deemed to have been terminated by mutual consent); and

(b) in entering into these Conditions and the Contract, it does not rely on any statement, representation, assurance, promise or warranty of any person (whether a party to this agreement or not) other than as expressly set out in these Conditions and the Contract. Neither party excludes its liability for fraud or fraudulent misrepresentation.

17.6 Pharma-e may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under these Conditions and the Contract.

17.7 The Customer shall not assign, transfer or sub-contract the Contract or any of its rights, benefits or obligations under it to any other person, firm or supplier, without the prior written consent of Pharma-e.

17.8 Nothing in the Contract shall be deemed to constitute a partnership between the parties nor the relationship of employer and employee under a contract of service nor the relationship of principal and agent.

17.9 Except for Healthxchange who may enforce the terms of the Contract on behalf of Pharma-e, a person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any other person.

17.10 The Contract shall be governed by and construed in accordance with English law and the English Courts shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract.