Vision Pharmaceuticals Ltd Terms and Conditions of Sale

 

1. Interpretation

1.1 In these Conditions "BUYER" means the person who accepts a quotation off the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller "GOODS" means the goods (including any instalment of the goods or any parts for them) which the Seller 1s to supply in accordance with these Conditions "SELLER" means Vision Pharmaceuticals Ltd "CONDITIONS" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special items and conditions agreed in writing between the Buyer and the Seller. "CONTRACT" means the contract for the purchase and the sale of the Goods "WRITING" includes telex, cable, facsimile transmission and comparable means of communication   1.2 Any reference in these Conditions to any provis·1onof a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time   1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation  

2. Basis of the Sale

2.1 The Seller shall sell and the Buyer shall purchase the Goods In accordance with any written quotation of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller, subject In either case of these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order Is made or purported to be made, by the Buyer.   2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the   2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing In entering·1ntothe Contract the Buyer acknowledged that it does not rely on any such representations which are not so confirmed   2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed   2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of officer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the  

3 Orders and Specifications

3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative 3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary informaf1on relating to the Goods within a sufficient time to enable the Seller to perform the Contract In accordance with its terms 3.3 The quantity, quality and description of and any specification for the goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (If accepted by the Seller) 3.4 If the Goods are to be manufactured, altered or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnity the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed, to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification 3.5 The Seller reserves the right to make any changes In the specification of the Goods which are required to confirm with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect the1rquality or performance 3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement In Writing of the Seller and on no terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result or cancellation 3.7 The Seller reserves the right to refuse to accept any Goods back for credit where ordered incorrectly by the Buyer Where Goods are accepted back for credit, the Seller reserves the right to charge the Buyer a restocking fee

4. Price of the Goods

4.1 The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price 11st current at the date of acceptance of the order Where the Goods are supplied for export from the United Kingdom, the Seller's published export price list shall apply All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer 4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost of the Seller which Is due to any factor beyond the control of the Seller (such as, without limitation, any foreign fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), and change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions 4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the 4.4 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller the price quoted will be ex works for delivery of the Goods to the Buyer's address as set out in the estimate A charge will be made to cover any extra cost involving delivery to a different address Should expedited delivery be agreed an extra charge may be levied to cover any overtime or other additional costs involved

5. Terms of Payment

5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, In which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods 5.2 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer The time of payment of the price shall be of the essence of the Contract. Receipt for payment will be issued only upon request 5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: 5.31 Cancel the contract or suspend any further deliveries to the Buyer: 5.32 Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller as the Seller may think fit (notwithstanding any purported appropriation by the Buye0 and: 5.33 Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 8% per annum above The Cooperative Bank base rate from time to time, until payment in full is made (a part of the month being treated as a full month for purpose of calculating interest)

6. Delivery

6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's promise at any time after the Seller has notified the Buyer that the goods are ready for collect100 or, if some other place for delivery is agreed by the Seller, by the Seller delivery the Goods to that place 6.2 My dates quoted tor delivery of the Goods are approximate only and the Seller should not be liable for any delay in delivery of the Goods however caused Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller In writing The Goods may be delivered by the Seller In advance of the quoted delivery date upon giving reasonable notice to the 6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments In accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated 6.4 It the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (In the cheapest available market) or similar goods to replace those not delivered over the price of the 6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may 6.51 Store the Goods until actual delivery and charge the Buyer for reasonable costs (including insurance) of storage; or 6.52 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storing and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer foray shortfall below the price under the Contract

7. Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer 7.11 In the case of Goods to be delivered at the Seller's premises, at the time when the Seller notified the Buyer that the Goods are available for collection: or 7.12 In the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods 7.2 Not with standing delivery and passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due 7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but shall been entitled to resell or use the Goods in the ordinary course of the business 7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) , the Seller shall be entitled at any lime to require the Buyer to delivery up the Goods to the Seller and, if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods 7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but it the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller} forthwith become due and payable

8. Warranties

8.1 Subject to the Conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire 8.2 The above warranty is given by the Seller subject to the following Conditions: 8.21 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specificaf1on supplied by the Buyer. 8.22 the Seller shall be under no liability in respect of any defect arising from wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval 8.23 the Seller shall be under the above warranty (or any other warranty, condition or guarantee) 1f the total price for the Goods has not been paid by the due date for payment 8.24 the above warranty does not extend to parts, materials or equipment not manufactures by the Seller, In respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller. 8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to cl 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. 8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer legislation) the statutory rights of the Buyer are not affected by these Conditions 8.5 My claim by the Buyer which Is based on any defect in the quality or condition of the Goods of their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure Goods are not to be returned to the Seller without express consent of the Seller. Where the Seller gives consent for Goods to be returned by the Buyer, The Buyer will be liable to pay the costs of carriage and insurance for carriage where appropriate, subject to the Buyer's absolute d1scret1on to vary this term If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price of as If the Goods had been delivered in accordance with the Contract 8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. 8.7 Where the Seller expressly allows the Buyer to return Goods as unwanted and only In circumstances of the express consent of the Seller then the returned Goods must be in the condition and unopened packaging as sent by the Buyer to the Seller In such circumstances the Seller reserves the right to charge the Buyer a reasonable handling charge Where the Good are returned in accordance with this sub clause and packaging has been unopened, the Seller reserves the right to make a handling charge to the Buyer of not less than 25% of the Price of the Goods 8.8 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any reputation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of Contract, for any indirect, special or consequential loss or damage (whether for loss of property or other-wise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions 8.9 The Seller shall not be liable to the Buyer 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 Seller's obligations In relation to the goods, 1f the delay or failure was due to any cause beyond the Seller's reasonable control Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control 8.91 Act of God, explosion, flood, tempest, fire or accident, 8.92 War or threat of war, sabotage, insurrection, civil disturbance or requisition; 8.93 Acts, restriction, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary local authority; 8.94 Import or export regulations or embargoes 8.95 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of the third party); 8 96 Difficulties in obtaining raw materials, labour, fuel, parts or machinery; 8.97 Power failure or breakdown in machinery

9. Indemnity

9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent. copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, des1gnor specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer In connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that; 9.11 the Seller is given full control of any proceedings or negotiations in connection with any such claim; 9.12 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations; 9 13 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld), 9.14 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under such policy or cover (which the Buyer shall use its best endeavours to do); 9.15 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any awarded In favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be reasonably withheld) to be paid by, any other party in respect of any such claim; and 9.16 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause

10. Insolvency of Buyer

10.1 This clause applies, if 10.11 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise then for the purpose of amalgamation or reconstruction), or 10.12 an encumbrance takes possession, or a receiver Is appointed, or any of the property or assets of the Buyer; or 10.13 the Buyer ceases, or threatens to cease, to carry on business; or 10.14 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly 10.2 If this cause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement to the contrary

11. Export Terms

11.1 In these Conditions "incoterms" means the international rules for interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made Unless the context otherwise requires, any terms of expression which is defined in or given a particular meaning by the provisions of incoterms shall have the same meaning in these Conditions, but it there Is any conflict between the provisions of incoterms and these Conditions, the latter shall prevail 11.11 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Selle0 apply notwithstanding any other provisions of these Conditions 11.12 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the county of destination and for the payment of any duties on them 11.13 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered fob to the air or sea port for shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979 11.14 The Buyer shall be responsible for testing (where appropriate) and inspection of the Goods at the Seller's premises before shipment The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which are made after shipment or in respect of any damages during transit

12. General

12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice 12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision 12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part of the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected 12 4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the England Courts