The Customer's attention is drawn to
the provisions of condition 6.2
1.1 The following definitions apply in
firm or company who purchases the Goods from the Company.
day on which the banks in the city of London are open for business;
Distribution Limited (company number 3181523)
contract between the Company and the Customer for the sale and purchase of
the Goods, incorporating these conditions;
any health foods, related
equipment or other goods agreed in the Contract to be supplied to the
Customer by the Company (including any part or parts of them);
Herbal Medicinal Products
means those traditional herbal
medicinal products as are the subject of the Medicines (Traditional Herbal
Medicinal Products for Human Use) Regulations 2005, and more particularly
refers to those products supplied by the Company under its Wholesale Dealers
means a licence granted to the
Company under the Medicines Act 1968.
1.2 A reference to a particular law is a
reference to it as it is in force for the time being taking account of any
amendment, extension, application or re-enactment and includes any subordinate
legislation for the time being in force made under it.
1.3 Words in the singular include the
plural and in the plural include the singular.
1.4 A reference to one gender includes a
reference to the other gender.
1.5 Condition headings do not affect the
interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 The Contract shall be on these
conditions to the exclusion of all other terms and conditions (including any
terms or conditions which the Customer purports to apply under any purchase
order, confirmation of order, specification or other document).
2.2 These conditions apply to all the
Company's sales and any variation to these conditions and any representations
about the Goods shall have no effect unless expressly agreed in writing and signed
by a director of the Company. The Customer acknowledges that it has not relied
on any statement, promise or representation made or given by or on behalf of
the Company which is not set out in the Contract. Nothing in this condition
shall exclude or limit the Company's liability for fraudulent
2.3 Each order placed by a Customer, or
acceptance by the Customer of a quotation given by the Company for the supply
of specified Goods, shall be deemed to be an offer by the Customer to buy Goods
subject to these conditions.
2.4 No order placed by the Customer
shall be deemed to be accepted by the Company until a written acknowledgement
of order is issued by the Company or (if earlier) the Company delivers the
Goods to the Customer.
2.5 The Customer shall ensure that the
terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis
that no Contract shall come into existence until the Company despatches an
acknowledgement of order to the Customer.
3.1 The quantity and description of the
Goods shall be as set out in the Company's quotation or acknowledgement of
3.2 All samples, drawings, descriptive
matter, specifications and advertising issued by the Company and any
descriptions or illustrations contained in the Company'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
and this is not a sale by sample.
4.1 Unless otherwise agreed in writing
by the Company, delivery of the Goods shall take place at the Customer’s place
of business or residential address (as the case may be).
4.2 Any date or time specified by the
Company for delivery of the Goods are intended to be an estimate and time for
delivery shall not be made of the essence by notice. If no dates are so
specified, delivery shall be within a reasonable time.
4.3 Subject to the other provisions of
these conditions the Company shall not be liable for any direct, indirect or
consequential loss (all three of which terms include, without limitation, pure
economic loss, loss of profits, loss of business, depletion of goodwill and
similar loss), costs, damages, charges or expenses caused directly or
indirectly by any delay in the delivery of the Goods (even if caused by the
Company's negligence), nor shall any delay entitle the Customer to terminate or
rescind the Contract unless such delay exceeds 15 Business Days.
4.4 The Company may deliver the Goods by
separate instalments. Each separate instalment shall be invoiced and paid for
in accordance with the provisions of the Contract.
4.5 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
5.1 The quantity of any consignment of
Goods as recorded by the Company on despatch from the Company'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
5.2 Where the Customer can prove to the
Company’s reasonable satisfaction that Goods were damaged in transit, the
Company will (at its discretion) replace such damaged items. The Customer must
notify the Company of any damage to any of the Goods within 3 Business Day of
the time of delivery.
5.3 Any liability of the Company for the
non-delivery of the Goods shall be limited to either replacing the Goods within
a reasonable time or issuing a credit note at the pro rata Contract rate
against any invoice raised for such Goods. The course of action taken shall be
at the Company’s absolute discretion.
6.1 The risk in the Goods shall pass
from the Company to the Customer, either from the time that the goods are
dispatched by the Company from its premises to the Customer; or from the time
that the goods are collected by the Customer from the Company (as the case may
Ownership of the Goods shall not pass to the Customer until the Company
has received in full (in cash or cleared funds) all sums due to it in respect
6.2.1 the Goods; and
6.2.2 all other sums which are or which
become due to the Company from the Customer on any account.
6.3 Until ownership of the Goods has
passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis
as the Company's bailee;
6.3.2 store the Goods (at no cost to the
Company) separately from all other goods of the Customer or any third party, or
in such a way that they remain readily identifiable as the Company's property;
6.3.3 not destroy, deface or obscure any
identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory
condition and keep them insured on the Company's behalf for their full price
against all risks to the reasonable satisfaction of the Company.
6.4 The Customer may resell the Goods
before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the
ordinary course of the Customer's business at full market value; and
6.4.2 any such sale shall be a sale of the
Company's property on the Customer's own behalf and the Customer shall deal as
principal when making such a sale.
6.5 The Customer's right to possession
of the Goods shall terminate immediately if:
6.5.1 the Customer has a bankruptcy order
made against him or makes an arrangement or composition with his creditors, or
otherwise takes the benefit of any statutory provision for the time being in
force for the relief of insolvent debtors, or (being a body corporate) convenes
a meeting of creditors (whether formal or informal), or enters into liquidation
(whether voluntary or compulsory) except a solvent voluntary liquidation for
the purpose only of reconstruction or amalgamation, or has a receiver and/or
manager, administrator or administrative receiver appointed of its undertaking
or any part thereof, or documents are filed with the court for the appointment
of an administrator of the Customer or notice of intention to appoint an
administrator is given by the Customer or its directors or by a qualifying
floating charge holder (as defined in paragraph 14 of Schedule B1 to the
Insolvency Act 1986), or a resolution is passed or a petition presented to any
court for the winding-up of the Customer or for the granting of an
administration order in respect of the Customer, or any proceedings are
commenced relating to the insolvency or possible insolvency of the Customer; or
6.5.2 the Customer suffers or allows any
execution, whether legal or equitable, to be levied on his/its property or
obtained against him/it, or fails to observe or perform any of his/its
obligations under the Contract or any other contract between the Company and
the Customer, or is unable to pay its debts within the meaning of section 123
of the Insolvency Act 1986 or the Customer ceases to trade; or
6.5.3 the Customer encumbers or in any way
charges any of the Goods.
6.6 The Company shall be entitled to
recover payment for the Goods notwithstanding that ownership of any of the
Goods has not passed from the Company.
6.7 The Customer grants the Company, its
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 the
Customer's right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine
whether any Goods are the goods in respect of which the Customer's right to
possession has terminated, the Customer shall be deemed to have sold all goods
of the kind sold by the Company to the Customer in the order in which they were
invoiced to the Customer.
6.9 On termination of the Contract,
howsoever caused, the Company's (but not the Customer's) rights contained in
this condition shall remain in effect.
7.1 Unless otherwise agreed by the
Company in writing, the price for the Goods shall be the price set out in the
Company's price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be
exclusive of any value added tax and all costs or charges in relation to
packaging and carriage, all of which amounts the Customer shall pay in addition
when it is due to pay for the Goods.
7.3 Value added tax shall (if
applicable) be added to the price of the Goods at the rate of 15%.
7.4 Postal and packaging charges will be
charged to the Customer in accordance with the Company’s scale of charges from
time to time.
8.1 Subject to condition
8.4, payment of
the price for the Goods is due in pounds sterling in accordance with the
payment terms agreed between the Company and the Customer from time to time.
8.2 Time for payment shall be of the
8.3 No payment shall be deemed to have
been received until the Company has received cleared funds.
8.4 All payments payable to the Company
under the Contract shall become due immediately on its termination despite any
8.5 The Customer shall make all payments
due under the Contract in full without any deduction whether by way of set-off,
counterclaim, discount, abatement or otherwise unless the Customer has a valid
court order requiring an amount equal to such deduction to be paid by the
Company to the Customer.
8.6 If the Customer fails to pay the
Company any sum due pursuant to the Contract, the Customer shall be liable to
pay interest to the Company on such sum from the due date for payment at the
annual rate of 8% above the base lending rate from time to time of the Bank of
England, accruing on a daily basis until payment is made, whether before or
after any judgment.
The Company warrants that (subject to the other provisions of these conditions)
the Goods shall be of satisfactory quality within the meaning of the Sale of
Goods Act 1979.
The Company shall not be liable for a breach of the warranty in condition 9.1
9.2.1 the Customer gives written notice of
the defect to the Company within 3
Business Days of the time when the Customer discovers or ought to have
discovered the defect; and
9.2.2 the Company is given a reasonable
opportunity after receiving the notice of examining such Goods and the Customer
(if asked to do so by the Company) returns such Goods to the Company's place of
business at the Company's cost for the examination to take place there.
The Company shall not be liable for a breach of the warranty in condition 9.1
9.3.1 the Customer sells or otherwise
makes any further use of such Goods after giving such notice; or
9.3.2 the defect arises because the
Customer failed to follow the Company's oral or written instructions as to the
storage or use of the Goods or (if there are none) good trade practice; or
9.3.3 (where applicable) the Customer
alters or repairs such Goods without the written consent of the Company.
Subject to condition 9.2
and condition 9.3
, if any of the Goods do not conform with the warranty
in condition 9.1, the Company shall at its option replace such goods
or refund the price of such Goods at the pro rata Contract rate provided that,
if the Company so requests, the Customer shall, at the Company's expense,
return to the Company the Goods or the part of such Goods which are defective.
9.5 If the Company complies with
condition 9.4, it shall have no further liability for a breach of
the warranty in condition 9.1
in respect of such Goods.
9.6 Any Goods returned (in exchange for
replacement Goods) shall belong to the Company.
10.1 Subject to condition 10.2 and
condition 10.3, and to prior agreement between the Customer and the
Company, the Company will accept the return of any Goods which are in a
resalable condition and which have not less than 1 month to go before the date
after which they may no longer be sold.
10.2 The Company cannot resell any
Traditional Herbal Medicinal Products which have left its control and
accordingly, subject to clause 9, the Company cannot accept the return of these
In relation to Goods which are returned by the Customer to the Company after the expiry
of 20 Business Days from the date of delivery, the Company will charge the
Customer a ‘restocking’ charge equal to 15% of the price paid for the returned
Goods under this Contract.
LIMITATION OF LIABILITY
Save and to the extent as is otherwise provided, the following provisions
set out the entire financial liability of the Company (including any liability
for the acts or omissions of its employees, agents and sub-contractors) to the
Customer in respect of:
11.1.1 any breach of these conditions;
11.1.2 any use made or resale by the
Customer of any of the Goods, or of any product incorporating any of the Goods;
11.1.3 any representation, statement or
tortious act or omission including negligence arising under or in connection
with the Contract.
Nothing in these conditions excludes or limits the liability of the
11.2.1 for death or personal injury caused
by the Company's negligence; or
11.2.2 for fraud or fraudulent
11.2.3 for any matter which it would be
illegal for the Company to exclude or attempt to exclude its liability.
11.3 Subject to condition 11.2:
11.3.1 the Company's total liability in
contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise, arising in connection with the
performance, contemplated performance or non-performance (in part or in full)
of the Contract shall be limited to the price payable by the Customer to the
Company under the Contract; and
11.3.2 the Company shall not be liable to the Customer
for the loss of profit, loss of
business, or depletion of goodwill in each case whether direct, indirect or
consequential, or any claims for consequential compensation whatsoever
(howsoever caused) which arise out of or in connection with the Contract.
The Company may assign the Contract or any part of it to any person, firm
12.2 The Customer shall not be entitled
to assign the Contract or any part of it without the prior written consent of
13. FORCE MAJEURE
13.1 The Company reserves the right to
defer the date of delivery or to cancel the Contract or reduce the volume of
the Goods ordered by the Customer (without liability to the Customer) if it is
prevented from or delayed in the carrying on of its business due to
circumstances beyond the reasonable control of the Company including, without
limitation, acts of God, governmental actions, war or national emergency, acts
of terrorism, protests, riot, civil commotion, fire, explosion, flood,
epidemic, lock-outs, strikes or other labour disputes (whether or not relating
to either party's workforce), or restraints or delays affecting carriers or
inability or delay in obtaining supplies of adequate or suitable materials,
provided that, if the event in question continues for a continuous period in
excess of 15 Business Days, the Customer shall be entitled to give notice in
writing to the Company to terminate the Contract.
14.1 Each right or remedy of the Company
under the Contract is without prejudice to any other right or remedy of the
Company whether under the Contract or not.
14.2 If any provision of the Contract is
found by any court, tribunal or administrative body of competent jurisdiction
to be wholly or partly illegal, invalid, void, voidable, unenforceable or
unreasonable it shall to the extent of such illegality, invalidity, voidness,
voidability, unenforceability or unreasonableness be deemed severable and the remaining
provisions of the Contract and the remainder of such provision shall continue
in full force and effect.
14.3 Failure or delay by the Company in
enforcing or partially enforcing any provision of the Contract shall not be
construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Company of any
breach of, or any default under, any provision of the Contract by the Customer
shall not be deemed a waiver of any subsequent breach or default and shall in
no way affect the other terms of the Contract.
14.5 The parties to the Contract do not
intend that any term of the Contract shall be enforceable by virtue of the
Contracts (Rights of Third Parties) Act 1999 by any person that is not a party
14.6 The formation, existence,
construction, performance, validity and all aspects of the Contract shall be
governed by English law and the parties submit to the exclusive jurisdiction of
the English courts.
All communications between the parties about the Contract shall be in
writing and delivered by hand or sent by pre-paid first class post or sent by
15.1.1 (in case of communications to the
Company) to its registered office or such changed address as shall be notified
to the Customer by the Company; or
15.1.2 (in the case of the communications
to the Customer) to the registered office of the addressee (if it is a company)
or (in any other case) to any address of the Customer set out in any document
which forms part of the Contract or such other address as shall be notified to
the Company by the Customer.
15.2 Communications shall be deemed to
have been received:
15.2.1 if sent by pre-paid first class
post, two Business Days after posting (exclusive of the day of posting); or
15.2.2 if delivered by hand, on the day of
15.2.3 if sent by fax on a working day
prior to 4.00 pm, at the time of transmission and otherwise on the next
15.3 Communications addressed to the
Company shall be marked for the attention of the Managing Director.