Terms and Conditions

INTRODUCTION These terms and conditions (the “Terms”) are entered into by Smartway Pharma Ltd (the “Seller”) and you (the “Buyer”), where the Seller and the Buyer are known collectively as the “Parties”, and such any contract relating to the sale of goods between the Parties, including this agreement, shall be have the Terms incorporated into such contract and be known as a Relevant Contract.
TRADING PROCESS The terms set out in Clause 2 describe the manner in which the Parties shall interact in the course of business in relation to a Relevant Contract.
- PRICE MECHANISM
  - The price (excluding any applicable Value Added Tax (“VAT”)) payable for any goods in a Relevant Contract shall specified in the Seller’s current price catalogue unless an existing agreement between the Parties specifies otherwise.
  - The Buyer shall be liable to pay any applicable VAT in addition to the prices for any goods.
- PAYMENT PROCESS
  - In relation to the sale of any goods in a Relevant Contract, and subject to Clause 2.6, payment shall be performed as detailed in Clause 2.2.
  - Upon the Seller providing written notice to the Buyer regarding goods becoming available for delivery or collection purposes from the Seller’s specified area of trading operations, the Seller has the option to provide the Buyer an invoice against the price of the goods as set out in Clause 2.1, notwithstanding that the Seller has the same option to provide an invoice to the Buyer following the delivery of goods to an area other than the Seller’s specified area of trading operations.
  - Subject to Clause 2.2(b), invoices shall be paid in full within 30 days of the invoice date and no later in any Relevant Contract.
  - Subject to Clause 2.2(c), the Seller has the option to extend credit to the Buyer, but if the Buyer will be unable to stop relying on credit prior to the delivery of the goods, the Seller has the option to require invoices are paid in part or in whole as specified by the Seller before any delivery is affected. The Seller’s opinion will be authoritative in deciding whether the Buyer will be unable to stop relying on credit.
  - Notwithstanding Clause 2.2(d), in the event of non-payment or outstanding invoices by the Buyer in a Relevant Contract, the Seller has the option to suspend the exchange of goods to the Buyer until all outstanding invoices have been paid.
  - The Seller has the option to charge the Buyer proportionately fees for any costs incurred by suppliers due to actions of the Buyer in a Relevant Contract.
  - The Seller reserves the right to charge interest at the rate of 4% per annum above the current base rate of Barclays Bank PLC on all outstanding invoices from the date due and up to and including the date on which final settlement is made in full, and the Buyer shall pay the interest on demand.
- ORDER PROCESS
  - The Buyer shall provide to the Seller within a reasonable time any specifications regarding prospective orders to ensure the Seller can complete the order process described in Clause 2.3.
  - Unless otherwise agreed, any specifications or samples provided by the Seller to the Buyer are intended for information purposes only and are provided solely as approximation, and the Seller will assume no liability should there be any deviations within any delivered orders and therefore there are no warranties neither implied nor expressed by such specifications or samples as to the quality of the goods for the purposes in a Relevant Contract.
  - Where necessary, the Seller has the option to update specifications in order to achieve compliance with relevant statutory requirements or any other changes as the Seller reasonably believes will maintain the quality of the goods.
  - With respect to prescription goods that may be part of the order:
    - Buyers may reserve the goods by fax to the Seller prior to delivery and receipt of the goods.
    - Obtaining the goods requires that the reservation includes the original, valid prescription signed by only a licensed prescriber such as a registered physician, and that the goods are provided only to the named individual for whom the prescription is written (the “Patient”), and the Patient may specify the delivery address for the goods.
    - The Patient has the option but not the requirement to allow third parties to manage the process of receipt, storage, and payment of the goods.
    - The Patient shall be responsible for the cost of the goods and any associated tax liabilities, and should any payment of such costs become outstanding or should the Seller incur any tax liability due to the Patient or an appointed third party representative of the Patient, the Seller has the option to pursue the Patient, an appointed third party representative of the Patient, or both as if they were Buyers.
  - The Buyer has the option to cancel orders on written notice and including payment of fees including any expenses incurred or to be incurred as a result of the cancellation.
  - Orders for refrigerated goods are final and cannot be cancelled once the delivery process begins.
  - Where necessary, the Buyer shall provide the Seller with any necessary information to allow the Seller to comply with its tax legal obligations.
- DELIVERY PROCESS
  - The Seller shall be responsible for the delivery of the goods specified in an order by selecting a delivery method that results in the goods arriving at the agreed delivery location for the Buyer’s benefit, and in the event no delivery location is agreed, then delivery will proceed on the basis that the Buyer’s address will be sufficient for the delivery location.
  - Delivery of the goods can be performed in installments instead of in whole, such that any failure of delivery of an installment alone does not constitute a fundamental breach of a Relevant Contract, and a reasonable remedy may be agreed by the Parties.
  - The Seller assumes no responsibility regarding timely delivery of the goods as any specified times are approximations and act as information only, the Buyer must accept the goods irrespective of delivery time, which shall not be held to any strict standard. Furthermore, s32(2) of the Sale of Goods Act 1979 shall not apply and the Seller assumes no obligation to provide notice under such section.
  - In respect of receipt, should the Buyer not take receipt of nor carry out actions relevant for delivery of the goods in relation to a Relevant Contract, the Seller has the option to declare the Buyer under fundamental breach of this term for the purposes of Clause 5.1(c) and pursue the Buyer for any losses or costs incurred by the Seller in relation to the disposal or failure to take receipt of the goods.
  - Any import/export duties and associated or relevant charges shall be the responsibility of the Buyer, and the Buyer assumes responsibility for legal and regulatory compliance in relation to import/export matters.
- RETURN PROCESS
  - Returns are accepted only if agreed in writing by the Seller.
  - The Buyer must report, within 1 business day of order receipt, in writing any faults or errors (including damage) in the goods, and such faults or errors must not be rectified in advance of any inspection by the relevant carrier of the goods
  - Where the incorrect order is received, the goods (excluding refrigerated goods, which cannot be returned) shall be returned within 3 business days following receipt including the original and sealed container.
- BUYER’S OBLIGATIONS & SELLER’S RIGHTS
  - With respect to goods in a Relevant Contract, any potential risk in relation to the goods, such as damage or loss, becomes that of the Buyer either when the Seller provides notification that delivery or collection is possible for the goods at the Seller’s area of operations or when the Seller has processed delivery of the goods for receipt at the Buyer’s agreed destination and either delivery has been effected or the Buyer does not collect the goods.
  - Notwithstanding Clause 2.6(a), the Seller shall receive payment of invoices relating to specified goods in full prior to the ownership of the goods transferring to the Buyer.
  - Prior to receipt of payment as described in Clause 2.6(b), the Buyer shall act as the Seller’s agent by holding the goods and can dispose of the goods only as specified in Clause 2.6.f, furthermore any held goods should be separated such that Buyer’s goods are not mixed with goods not in the ownership of the Buyer. Such goods should be reasonably handled and protected as property of the Seller. While the ownership is not the Buyer’s, goods in the Buyer’s possession must be kept without encumbrances such as a charge otherwise the Buyer is liable to pay the Seller immediately for any amounts due in relation to the goods in question and otherwise, such remedy to take effect without affecting any of the Seller’s other right or remedies. With respect to notices, the Buyer must promptly notify the Seller should any events specified in Clause 5.1 occur in addition to any information that is available regarding the goods as the Seller may reasonably require.
  - Prior to receipt of payment as described in Clause 2.6b), the Seller has the option both to require the Buyer to deliver the goods to a specified recipient such as the Seller and to enter and inspect the premises where the goods are held for the purposes of inspection or repossession should the Buyer not comply with delivery instructions.
  - The Buyer shall not maintain possession of the goods either where the Seller has the option specified in Clause 2.2(e) or where any events specified in Clause 5.1 occur.
  - Subject to the consent of the Seller, the Buyer may sell the goods in its possession to third parties aside from the Seller without purporting to bind the Seller into any legal obligation, and where the Buyer makes a sale to the Seller, such sale shall be effected whereby the Buyer shall act as an agent for the Seller. Any proceeds, including interest, shall be held for the benefit of the Seller. However, the Seller will return any monies that exceed the value of what the Buyer owes the Seller.
  - Irrespective of the ownership title, the Seller may pursue the Buyer further to Clause 2.2(e) to recover the value of the goods in the possession of the Buyer, and should Clause 2.2(e) apply, the Seller may transfer ownership of the goods to the Buyer upon providing written notice.
WARRANTIES AND REPRESENTATION
- Further to Clause 2.3(a), the Seller provides warranty regarding the quality of the goods as satisfactory and reflective of the specifications provided by the Buyer to the Seller upon delivery.
- The Buyer acknowledges that it does not rely on and waives any claim for breach of any representations made by any of the Seller’s employees, contractors, or other associates.
- All other warranties, conditions and representations expressed or implied by statute, common law or otherwise (including, without limitation, warranties as to satisfactory quality, fitness for purpose or skill and care) are hereby excluded to the fullest extent permitted by law.
LIMITATION OF LIABILITY
- The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Seller within 4 days of delivery detailing the alleged damage or shortage.
- In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.
- Subject to Clauses 4.1 and 4.2, the Seller shall rectify errors in any orders with respect to the goods and specifically where there are shortages and where appropriate replace any goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
- In recognition of the relative risks and benefits of the Relevant Contract to the Parties, the risks have been allocated such that the Buyer agrees, to the fullest extent permitted by law, to limit the liability of the Seller to the Buyer for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including legal fees and costs and expert witness fees and costs, so that the total aggregate liability of the Seller to the Buyer shall not exceed the amount paid by the Buyer in relation to the Relevant Contract. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law.
- The Seller assumes no liability in relation to non-payment of invoices, in relation to defects caused by storage facilities or the acts or omissions of a party other than the Seller including the provision of specifications, in relation to errors or faults in the orders unless handled according to Clause 2.5, or in relation to any other loss or damage the Buyer may experience within a Relevant Contract unless the Parties have agreed otherwise.
TERMINATION
- The Seller has the option to terminate immediately any Relevant Contract, including this agreement, by providing written notice to the Buyer following any of the below occurring during a Relevant Contract:
  - the Buyer goes into liquidation, has an administrator, administrative receiver, receiver or manager appointed over the whole or any part of its assets or business, makes any composition or arrangement with its creditors generally, becomes insolvent or ceases trading, or if it threatens to do any of the foregoing;
  - the Buyer causes material breach of any terms of any Relevant Contract that is not remedied (where possible) within a 14 day period following such breach;
  - the Buyer fails to effect timely payment regarding any monies due under a Relevant Contract subject to any grace period provided by the Seller;
  - in the reasonable opinion of the Seller that any of the above is likely to occur and provides the Buyer written notice.
- The effect of termination per Clause 5.1 shall result in the Buyer paying to the Seller any monies in relation to unpaid goods within any Relevant Contract and such monies shall become immediately due and payable.
- The Seller reserves all rights that are in force, may continue to be in force, or will come into force following a termination event listed in Clause 5.1.
HEALTH AND SAFETY
- The Buyer shall consider with due skill and care any information supplied by the Seller in relation to the goods in a Relevant Contract, such that the Buyer understands the purpose of the goods, how they have been tested, or any other issues relevant to ascertaining their use as safe and without risk to their end users. Accordingly, Buyer shall undertake to ensure the goods will be safe and without risk to their end users as is reasonably foreseeable with their due skill and care to provide such goods to their end users.
- Notwithstanding Clause 6.1, the Buyer is responsible for following the rules and prescriptions of the Health and Safety Act as may be required by law.
GENERAL
- FORCE MAJEURE
  - A party shall not be liable for any failure of or delay in the performance of these Terms for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.
- SEVERABILITY
  - The invalidity or unenforceability of any provisions of these Terms shall not affect the validity or enforceability of any other provision of these Terms, which shall remain in full force and effect.
- WAIVER
  - No waiver by either party, whether express or implied, of any provisions of this Relevant Contract or of any breach or default by either party, shall constitute a continuing waiver or a waiver of any other provision of this Relevant Contract, and no such waiver by either party shall prevent such party from enforcing any and all provisions of this Relevant Contract or from acting upon the same or any subsequent breach or default of the other party.
  - No waiver of any provision hereunder shall be effective unless it is in writing signed by the party against whom enforcement thereof is sought.
- ENTIRE AGREEMENT
  - These Terms constitute the entire agreement between you and us, and unless the Terms are varied in writing by an authorized representative of the Seller, the Terms prevail over any correspondence, suggestions, course of dealing, practice, trade custom, and any other form of communication that may have been referred to with respect for any such contract for the sale of goods and/or services between the Seller and the Buyer as described above.
  - Any course of dealing, without prejudice to any other manner in which these Terms may be evidenced, in which the Buyer accepts delivery of goods in relation to a Relevant Contract shall be deemed to constitute acceptance of these Terms.
  - Any contract entered into between the Seller and the Buyer without reference to these Terms or to any conditions of sale or purchase shall be deemed to be subject to these Terms.
- ASSIGNMENT, VARIATION, NOTICES & THIRD PARTIES
  - Any variations to the Terms must be agreed in writing between the Seller and the Buyer.
  - The consent of the Seller is required to transfer any rights and obligations of the Buyer, and therefore such right and obligations cannot be assigned or transferred without such consent being provided.
  - Any notice in a Relevant Contract must be provided in writing.
  - The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than the Seller and the Buyer shall have any rights under it.
- GOVERNING LAW & JURISDICTION
  - These Terms shall be governed by the laws of England and Wales, and are subject to the exclusive jurisdiction of the courts of England and Wales.

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