Terms and Conditions
In this Agreement, the following words shall have the following meanings:
Acknowledgement of Order means Our confirmation of an order from You or Our invoice under which or which sets out the basis on which We provide Goods or Services;
Agreement means the agreement between BAP Pharma and the Customer for the provision of any Goods and/or Services to a Customer as set out in these Terms and Conditions;
Confidential Information means all information in whatever form which relates to a party or any member of its group or to the business of such persons, including, without limitation, the records and business practices or strategies, whether disclosed orally or in writing to, or generated by, the first mentioned party, and in either case, whether prior to or after the date of this Agreement and whether or not such information is marked or stated to be confidential, together with the terms of this Agreement;
Customer/You means the company/partnership/individual to whom We are providing Goods or Services (or for whose client We provide the Services);
Goods means the goods specified in the Acknowledgement of Order to You;
BAP Pharma/We/Us/Our means BAP Pharma Limited; Company No 07406019; Registered Office 103 Buckingham Avenue, Slough, Berkshire, England, SL1 4PF;
Parties means BAP Pharma and the Customer, and Party shall mean either one of them;
Price means the amount You shall pay for the Goods and/or Services We provide as set out in clause 3;
Services means those works or services We carry out which are not directly part of the Goods which are delivered to You (or delivered to Your client).
Please note all Goods and Services provided by BAP Pharma are provided on the basis of these Terms and Conditions unless agreed in writing by a Director of BAP Pharma.
Supply of Goods/Services
2.1 These Terms and Conditions provide the basis for the Agreement for any Goods or Services We provide with the Acknowledgement of Order. No other terms and conditions shall apply to the provision of any goods by Us with the associated services unless expressly agreed in writing by a Director of BAP Pharma.
2.2 We shall use our reasonable endeavours to provide the Goods and/or Services in accordance with any request or as specified in the Acknowledgement of Order. We shall use our reasonable endeavours to provide the Goods and/or Services within any time specified or requested, but time shall not be of the essence.
2.3 You acknowledge that We are not liable for any delay in providing any Goods and/or Services and that Our liability in providing any Goods and/or Services is limited in accordance with these Terms and Conditions.
2.4 You are responsible for the payment for Goods and/or Services from the point You place your order unless expressly agreed in writing by a Director of BAP Pharma.
Price and Payment
3.1 Where We provide You with an Acknowledgement of Order (which may be an email) which sets out the charges for the Goods and/or Services that shall be the Price You will pay for the provision of the applicable Goods and/or Services.
3.2 In the event the charges are not set out in an Acknowledgement of Order the charges shall be as otherwise notified to You or Our prices where applicable at the date Goods are ready for dispatch and if there is no price it shall be calculated based on Our costs plus Our usual margin at that point and that shall be the Price.
3.3 All Prices are exclusive of VAT and any other applicable taxes, which will be charged in addition to the Price at the rate in force at the time You are required to pay.
3.4 If You do not make a payment by the date stated in an invoice or as otherwise provided for in an Agreement then We shall be entitled to:
3.4.1 charge interest on the outstanding amount at the rate of 3% a year above the base lending rate of Barclays Bank plc, accruing daily;
3.2.2 not perform any further Services (or any part of the Services) or provide any further Goods.
3.5 Any dispute on a Price or in the provision of Goods and/or Services must be raised with Us within 7 days of the provision of an invoice or (if later) the provision of the Goods or Services.
3.6 All payments should be made on the basis specified in the Acknowledgement of Order. When making a payment You shall quote relevant reference numbers and the invoice number. We are not obliged to provide any Goods until We are in receipt of cleared funds, unless this is specified in the Acknowledgement of Order.
The Client’s Obligations/Delivery
4.1 You shall:
4.1.1 co-operate with Us where the provision of the Goods and/or Services reasonably require;
4.1.2 be responsible for the collection or delivery of any Goods. If We agree to provide delivery You shall be responsible for the delivery costs (including the cost for packaging and insurance);
4.1.3 ensure that all Goods delivered conform with their delivery note and in the event of any short-delivered Goods must notify Us within 10 days, failing which You agree that Goods were delivered as specified. In the event of any short-delivered Goods We shall only be liable to provide the additional Goods;
4.1.4 fully inspect all Goods on delivery or collection and any damaged or faulty Goods must be reported to Us within 10 days of delivery or collection, otherwise You agree Goods were delivered/collected in good condition. In the event of any damaged or faulty Goods We shall only be liable to provide repairs or replacement Goods;
4.1.5 be responsible for the risk in any Goods from the point it is delivered or in the event delivery is delayed by you (or on your request) the point it is available for delivery;
4.1.6 ensure that Your staff and agents reasonably co-operate and assist Us;
4.1.7 take delivery of the Goods on the basis specified in the Acknowledgement of Order or in absence of any provision on the basis of Our reasonable instructions when making a delivery. For the avoidance of doubt, We shall not be obliged to take Goods into a premises or on to a site, unless We agree to do so and We consider it reasonable to do so. In the event that any delivery is effected on Your premises or site We are not responsible for any damage to the Goods or otherwise from the point where delivery could have been effected;
4.1.8 ensure that the details of any order placed with Us is as required by You and take full responsibility for it meeting Your needs;
4.1.9 use Goods as specified in Your purchase order (either for clinical trial supply or named patient use) and not resell any Goods without Our express written consent.
4.2 You shall not charge Us for any access to or use of Your facilities which are reasonably required in the provision of any Services or delivery of Goods.
5.1 We will not accept the return of any Goods unless notified of any damage or fault in accordance with clause 4.1.4 above or where We have previously agreed in writing.
6.1 Title to any Goods shall remain with BAP Pharma until the full Price for the Goods together with any taxes (including VAT) have been paid and no other payments to Us remain outstanding.
6.2 Until title to any Goods have passed to You, You shall hold all Goods to which the title remains with Us on a fiduciary basis as bailee for Us. You shall store the Goods separate from other goods in a way which allows them to be identified as Our property.
6.3 We shall be entitled to recover the Price (plus any applicable taxes) not withstanding that title has not passed.
6.4 Until title in the Goods passes from Us You shall on request deliver up to Us the Goods. If You fail to do so We may enter upon any premises (and You authorise Us by Our servants or agents to enter those premises) owned, occupied or controlled by You where the Goods are situated and repossess the Goods. On making such a request Your rights under clause 6 shall cease.
6.5 You shall not pledge or in any way charge by way of security for an indebtedness any of the Goods which are Our property. Without prejudice to any other right in the event of any breach of this clause 6.5 all other sums due to Us shall become immediately due and owing.
6.6 You shall insure all Goods to the full Price against ‘all risks’ until full title has passed to You and agree that We shall be entitled to any insured payment relating to the Goods.
7.1 We shall not be liable to You for any loss or damage to any goods (including without limitation the Goods) which belong to You.
7.2 We shall not be liable for any loss or damage or expense arising out of a defect with the Goods save where required by law.
Warranties, Liability and Indemnities
8.1 Each of the Parties acknowledges that, in entering into an Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in the Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes or limits liability for death, personal injury or fraud.
8.2 We warrant that We will use reasonable care and skill in providing any Goods and/or performing any Services to the standard generally accepted within the industry. However, We provide no warranty that any Goods and/or Services shall be provided by any particular time. No warranties are provided in the Goods save for those required by law.
8.3 If We provide any Goods and/or perform any Services (or any part thereof) negligently or in breach of this Agreement, then, if requested by You, We will re-perform the relevant part of the Services or replace any Goods (where applicable), subject to clause 9.2 below. Your request must be made within 7 days of the date of delivery of the provision of any Goods or Service in question.
8.4 Neither Party shall be liable to the other for any indirect or consequential losses.
8.5 Except in the case of death or personal injury caused by Our negligence or of fraud, Our liability under or in connection with an Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the higher of £1,000 or the Price of and Goods or Services to which the claim relates.
8.6 Save as provided in this clause 8 We shall not be liable in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by You or any third party in connection with any Agreement.
8.7 You shall indemnify Us against any third party claims relating to the Goods and the Services save where the same arises as a result solely of Our error, fraud or negligence.
9.1 Once We have provided an Acknowledgement of Order or accepted an order You cannot cancel the Agreement except with Our written agreement and on terms that you shall indemnify Us in full against any and all costs, loss, damages, charges and expenses We incur, and We shall retain the right to the fees set out in clause 5 above.
9.2 We may cancel an Agreement at any time on the provision of 14 days written notice to You. On giving such notice We shall promptly repay any sums paid in respect of the Price for Goods or Services which have not been provided. We shall not be liable for any loss or damage whatever arising out of such cancellation.
9.3 If an Agreement is cancelled for any reason You shall pay for all Goods and/or Services provided up to the date of cancellation, and for all expenditure BAP Pharma reasonably incur after the date of cancellation from commitments reasonably and necessarily incurred by it for the provision/performance of the Goods/Services prior to the date of cancellation.
10.1 Without prejudice to the other remedies or rights We may have, We may terminate an Agreement, at any time, on written notice to You:
10.1.1 if You are in material breach of your obligations under any Agreement and, if the breach is capable of remedy within 14 days, the breach is not remedied with 7 days of You receiving notice which specifies the breach and requiring it to be remedied; or
10.1.2 if You become insolvent or if an order is made or a resolution is passed for Your winding up (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of Your assets or business, or if You make any composition with Your creditors or take or suffer any similar or analogous action in consequence of debt.
The notice shall take effect as specified in the notice.
10.2 On termination of an Agreement, You shall pay for all Goods and/or Services provided up to the date of termination, and for all expenditure BAP Pharma reasonably incur after the date of termination from commitments reasonably and necessarily incurred by it for the provision/performance of the Goods/Services prior to the date of termination.
10.3 We may vary any term of an Agreement (including the Price) at any time. We shall provide You with 7 days’ notice of any change We make.
11.1.1 The parties to this Agreement will (i) hold in confidence all Confidential Information of the other party; (ii) only use such Confidential Information for the purposes of this Agreement; and (iii) not make any unauthorised disclosure of any such Confidential Information during the period of the supply of Goods and/or Services and for a period of two years thereafter.
11.1.2 The provisions of clause 11.1 shall not apply to any information which:
• is or becomes public knowledge other than by breach of this clause 11.1;
• is already in the possession of a party without restriction in relation to disclosure before the date of its receipt from the other party (or anyone acting for and on its behalf);
• the receiving party can demonstrate to the reasonable satisfaction of the other party it has been independently developed by it or on its behalf; or
• is received from a third party who lawfully acquired or developed it and who is under no obligation (express or implied) restricting its disclosure.
11.1.3 A party may disclose Confidential Information of the other party:
• to those of its officers, employees, professional advisers, parent or subsidiary companies, agents or sub-contractors, in each case as may be reasonably necessary for the purpose of fulfilling its obligations under this Agreement, and shall procure that any such person to whom it discloses Confidential Information is made aware of, and complies with, the provisions of this clause 11 and shall be responsible for any failure by any such person to whom it discloses Confidential Information, to comply with this clause 11.1 in relation to such Confidential Information;
• with the express consent of the other party; or
• where such disclosure is required by law, court order or by request of a regulatory agency.
11.2 Force majeure
We shall not have any liability under or be deemed to be in breach of any Agreement for any delays or failures in performance of this Agreement that result from circumstances beyond Our reasonable control.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
11.4 Entire agreement
Each Agreement contains the whole agreement between the Parties in respect of the Goods/Services. The Parties confirm that they have not entered into an Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
Any notice to be given under an Agreement shall be in writing and shall be sent by first class mail to the address of the relevant Party set out in clause 1 or by email to the usual email address for the relevant Party. Delivery shall be assumed on the second day after posting any mail or the day after an email was sent.
11.6 Law and jurisdiction
The validity, construction and performance of all Agreements shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
11.7 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and, not withstanding any other provision of an Agreement, each Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
11.8 Set off
We may set off any sums due from You against a Price paid for other Goods or Services (whether this is to be repaid to You or not). You may not set off any sums due to Us against any liability or claim You may have against Us or any third party.
We may assign, transfer or sub-contract any or all of the duties, Services, obligations and benefits in an Agreement to a third party, at Our sole discretion.
ACKNOWLEDGEMENT OF ORDER (Proforma Template)
Applicable Terms Reference:
Payment Terms (including if pre-payment required):