Terms and Conditions of Sale
(these ‘Terms & Conditions’)
(these ‘Terms & Conditions’)
1. DEFINITIONS AND INTERPRETATION
In this Contract:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
this “Contract” these Terms and Conditions and the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Quotation (if any) or from the Long Term Agreement (if any), or are not otherwise agreed by Sigma);
“Customer” the customer of Sigma whose details may be more particularly set out in the relevant order or long term agreement between the Parties;
“Event of Force Majeure” has the meaning given to it in Clause 10.1;
“Export Delivery” a delivery where the destination of the Products for Customer under this Contract is to a location other than the UK or Isle of Man or the Channel Islands;
“Liability” has the meaning given to it in Clause 7.7.1;
“Long Term Agreement” any written agreement between the Parties governing the long term relationship concerning the supply of Products by Sigma to Customer, and which may be in the form of Customer’s agreement to proceed with placing an Order following Sigma’s written confirmation of the Parties’ overall relationship terms in response to Customer’s completed account application form, the terms of which agreement may be updated by Sigma informing Customer in writing with immediate effect from time to time (and which terms are agreed by Customer’s conduct in proceeding with placing an Order following receipt of Sigma’s written information);
“Order” the request by Customer to Sigma for the provision of particular Products, which shall be in accordance with the terms of any particular Quotation or Long Term Agreement;
“Party” either Sigma or Customer;
“Payment” has the meaning given to it in Clause 4.1;
“Price” the price payable by Customer to Sigma for the supply by Sigma of the Products, as stipulated or calculated in accordance with this Contract or Long Term Agreement (or if no such price or basis is stipulated there, this shall be Sigma’s standard price for the Products current at the date of the Order (and Customer acknowledges that this may be an updated price since a previous Order)); “Product” any of Sigma’s products provided or to be provided by Sigma to Customer pursuant to this Contract;
“Quotation” the written quotation (if any) from Sigma to Customer detailing the Products that Sigma is willing in principle to supply to Customer for a particular order;
“Service Day” any day other than (a) a Sunday, or (b) a day which is a bank holiday in England (as set out on www.gov.uk/bank-holidays for bank holidays in England), or (c) Christmas Day, Boxing Day or New Year’s Day, or (d) a day when Customer is not open for business;
“Sigma” Sigma Pharmaceuticals Plc, a company registered in England under number 1561802 whose registered office is at First Floor Roxburghe House, 273-287 Regent Street, London, W1B 2HA, and whose principal office is at Unit 1-7, Colonial Way, Watford, Hertfordshire, WD24 4YR;
“UK Delivery” a delivery where the destination of the Products for Customer under this Contract is to a location in the UK or Isle of Man or the Channel Islands;
1.2 references to “Clauses” are to clauses of these Terms and Conditions;
1.3 headings are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 references to “includes” or “including” or like words or expressions shall mean without limitation;
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.7 references to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 11) includes in electronic form.
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. These Terms and Conditions apply to Sigma’s supply of all Products. The placement of any Order, the giving by Customer of any delivery instruction or the acceptance by Customer of delivery of the Products shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.2 Save as expressly provided herein, this Contract (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Contract and in any way relating to the subject matter of this Contract and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into this Contract based on any representation that is not expressly incorporated into this Contract.
2.3 This Contract (together with any documents referred to in it) constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.4 Subject to Clause 2.2, all materials and other particulars furnished by Sigma prior to any Quotation or any Long Term Agreement, or in Sigma’s sales or marketing materials or other documents (including its catalogues, trade literature, brochures, quotations, price lists or website) or made orally by Sigma, are given for general information purposes only and Customer acknowledges that it is not entering into this Contract in reliance upon any such materials or other particular (except to the extent that such materials or particulars form part of this Contract); the Products may also look different to their representation in any such materials or particulars.
2.5 Customer may submit the Order orally or in writing (including electronically through such medium as permitted or made available by Sigma) or any form, unless Sigma requires the Order to be in a particular form (including if the Order exceeds Sigma’s standard threshold for Orders to be in writing or in another particular form, from time to time), in which case Customer shall ensure that the Order is in that form. Unless otherwise agreed between the Parties in writing, any Order for an Export Delivery must be in writing in order to be valid. Customer shall also ensure that the Order is on the same terms and within any parameters set out in any Quotation and any Long Term Agreement. Unless otherwise agreed between the Parties in writing, an Order for an Export Delivery must be in accordance with the applicable Quotation provided by Sigma. If the Parties agree that Sigma will proceed to supply the Products, then such supply shall be only on the understanding that any differences in the Order from any Quotation or any Long Term Agreement shall have no effect unless the Parties expressly agree in writing.
2.6 Subject to Clause 2.7, unless Sigma indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound on the receipt by Sigma of Customer’s Order that conforms to Clause 2.5.
2.7 Sigma may at any time before delivery (or collection by Customer) without Liability inform Customer that it is cancelling or rejecting all or any part of the Order and terminating all or part of this Contract if the relevant Products are not in stock (or with the required shelf-life in accordance with this Contract) or need to be restricted by Sigma (in its absolute discretion) due to a shortage of supply or Event of Force Majeure. If there is any cancellation or termination due to a shortage or supply restriction, Customer may place a subsequent Order (which will be a separate Contract).
2.8 Where the Order is in writing, no change to this Contract shall be binding unless it is agreed in writing by authorised representatives of both Parties.
2.9 In the event of any conflict between this Contract or any Long Term Agreement, then the Long Term Agreement prevails, except to the extent otherwise expressly agreed by both Parties in writing.
2.10 Customer shall ensure that the Order contains full details of the Product to be supplied, the quantity of the Product ordered and the identity of Customer. Any price or delivery requirement other than in accordance with this Contract is of no effect.
2.11 It is Customer’s responsibility to ensure that all information supplied by it is complete and accurate. Customer shall ensure that the Order meets its particular requirements.
2.12 Any advice or recommendation givens by or on behalf of Sigma to Customer as to storage, transport, application or use of the Products is for convenience only and unless confirmed in writing by an authorised representative of Sigma that it is binding on Sigma it shall be entirely at Customer’s own risk without any Liability on Sigma. Customer is responsible for storing, transporting, applying and using the Products in accordance with all applicable laws, regulations, byelaws and codes of practice.
2.13 Each Order constitutes a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
2.14 Unless otherwise expressly agreed between the Parties in writing, no Contract shall be a sale by sample.
3. DELIVERY AND RISK
3.1 Subject to Clauses 2.7, 3.2, 9 and 10.5, in consideration for the payment of the Price and any other sums due by Customer under this Contract, Sigma shall supply to Customer the Products referred to in the Order.
3.2 Sigma reserves the right to delay delivery or cancel an Order if the amount owing by Customer to Sigma under all contracts between the Parties (including under this Contract) exceeds any credit limit for credit extended by Sigma to Customer from time to time or if any payment due from Customer to Sigma has not yet been made. Sigma may update the credit limit with immediate effect by informing Customer in writing from time to time.
3.3 Any time-frame for delivery in a previous contract shall not be an indication of the time-frame for delivery in this Contract. For:
3.3.1 UK Deliveries, Sigma shall usually deliver within one Service Day from receipt of Order (although this may vary depending on peak times and deliveries to remote areas, and may be delayed or the Order cancelled altogether in situations described in Clause 3.10, in which case (if the Order is not cancelled) Sigma shall delivery as soon as reasonably possible in the circumstances); and
3.3.2 Export Deliveries, Sigma shall inform Customer when the Products will be ready for receipt or collection. Customer shall ensure that it is ready to receive or collect the Products at the times reasonably stipulated by Sigma. If Customer does not collect the Products at the date and time stipulated by Sigma as being the date and time for collection, (without prejudice to any other right or remedy available to it) Sigma may charge Customer for its reasonable storage fees at its then standard storage rates and for Sigma’s other reasonable costs. Unless otherwise agreed between the Parties, Sigma’s delivery shall take place between 9am and 5pm on a Service Day.
3.4 Sigma may supply Products with modifications or improvements incorporated into them or with a substituted brand.
3.5 Packaging shall be in accordance with Sigma’s customary practices (suitable for anticipated transport conditions for arrival with Customer so that the Products are not damaged or contaminated) and with leaflets and labels in English. Customer shall be responsible for ensuring that it carries out any re-labelling or re-packaging in accordance with all applicable laws, regulations laws, regulations, bylaws and codes of practice. If Customer would like a special request for packaging, this is subject to Sigma’s agreement and Customer shall pay the extra cost.
3.6 Partial delivery or performance shall be permitted. Sigma may deliver and provide the Products in instalments. Unless the Parties otherwise agree in writing, Sigma may invoice Customer for each instalment.
3.7 Delay, default or non-delivery of any instalment by Sigma shall not entitle Customer to cancel or terminate, and shall not affect, the remainder of this Contract.
3.8 Unless otherwise agreed between the Parties:
3.8.1 for UK Deliveries, Sigma shall deliver the Products to Customer’s designated delivery address in the UK, Isle of Man or the Channel Islands; or
3.8.2 where the destination of the Products for Customer under this Contract is for an Export Delivery of the Products to a location:
(a) outside the UK but within the EEA, Sigma shall deliver the Products ex works (Incoterms 2010) at Sigma’s normal location for despatch of the Products in the UK; or
(b) outside the EEA, Sigma shall deliver the Products FCA (Incoterms 2010) at Customer’s courier location within England.
If there is any conflict between the provisions of Incoterms 2010 and this Contract, this Contract shall prevail.
3.9 Where Sigma delivers Products other than on ex works basis, Sigma may either use its own drivers or a third party carrier selected by Sigma, and Sigma shall arrange for carriage to the point of delivery.
3.10 Except to the extent otherwise agreed in writing between the Parties, Sigma shall charge Customer for the costs of delivery (whether using its own drivers or a third party carrier) at its then standard rates; this delivery charge applies unless (for UK Deliveries only) the total Price of the Products for the UK Delivery exceeds Sigma’s threshold from time to time (currently £100 per Delivery to an independent retail pharmacy, or £300 per UK Delivery to anyone else), in which event no delivery charge shall apply. Sigma shall invoice Customer for those applicable delivery charges at the same time as invoicing for the Products.
3.11 If Customer has placed an Order for a UK Delivery that is lower than the threshold described in Clause 3.10 (ie the threshold at which delivery charges would not apply for a UK Delivery):
3.11.1 If Customer is an independent retail pharmacy, Sigma shall refrain from delivering for up to two Service Days, in order to give Customer an opportunity to place a further Order to enable that threshold to be reached. If Sigma has not received any Orders from Customer within two Service Days that would mean that the threshold described in Clause 3.10 is reached, Sigma may (without any liability and without any responsibility to inform Customer) cancel the Orders not exceeding the threshold described in Clause 3.10; alternatively Customer may elect at any time, to continue with the Order by informing Sigma of this, and agreeing to take delivery anyway in which case Customer shall also pay the applicable delivery charges.
3.11.2 If Customer is anyone other than an independent retail pharmacy, Sigma shall deliver the Products, and Customer shall also pay the applicable delivery charges.
3.12 Where Sigma delivers the Products to Customer’s (or its direct or indirect customer’s or courier’s) premises, Sigma shall offload the Products at the nearest entrance to the delivery address and at ground floor level only. It is Customer’s responsibility to get the Products from that point to any other part of the delivery address or destination. Customer shall provide or procure the provision of Sigma’s delivery vehicle with reasonable access to park and deliver, or give Sigma sufficient notice for reasonable arrangements for making deliveries.
3.13 Customer shall, or shall require its courier or other agent to, sign a delivery note and other documentation upon receipt of the Products. The signing of any such documentation shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation. Customer shall (or shall require its courier or other agent to) inspect the Products and packaging for any obvious damage (including breakages) and make a note of any obvious damage when signing. Customer shall have the right to have an inspector on despatch of the Products from Sigma.
3.14 All risk in the Products shall pass to Customer upon delivery, provided that where delivery is delayed due to breach by Customer of its obligations under this Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.15 Unless otherwise agreed between the Parties, Customer shall keep the Products fully insured on Sigma’s behalf with a reputable insurance company to the reasonable satisfaction of Sigma for their full price against all risks of loss or damage from the time when the risk passes to Customer until property passes in accordance with Clause 4. On request, Customer shall produce the policy of insurance to Sigma. If the Products are lost, damaged or destroyed, Customer shall hold the proceeds of insurance for and to the order of Sigma pending Payment.
3.16 For Export Deliveries, Customer shall be responsible for complying with all applicable laws, regulations and codes of practice governing the importation and use of the Products in the destination country and for paying any import and export duties or levies.
3.17 Before delivery, Sigma shall:
3.17.1 use adequate facilities for performing its activities under this Contract, including manufacture and storage of Products;
3.17.2 observe all applicable laws, regulations, bylaws and codes of practice in respect of manufacture, sale, supply, export, storage, packaging, labelling and transportation of the Products from Sigma to Customer, as are applicable in Sigma’s place of manufacture or supply;
3.17.3 obtain and pay for and at all times maintain and comply with and conform to, all necessary or desirable licences, authorisations (including manufacturing and marketing authorisations), approvals, consents, permissions and certificates of origin required for the manufacturing, storage, sale and supply of Products as are applicable in Sigma’s place of manufacture or supply;
3.17.4 keep all inventory, stocks and supplies of Products in conditions appropriate for their storage (including, where applicable, temperature controlled) and to avoid deterioration and contamination; and
3.17.5 on or before delivery of Products to Customer check the Products in accordance with its regulatory requirements and give adequate advice and information to Customer as to the handling and storage of the Products.
3.18 From delivery, Customer shall:
3.18.1 use adequate facilities for receipt and use of the Products, and handle and store the Products in accordance with Sigma’s (or the manufacturer’s) instructions or requirements;
3.18.2 observe all applicable laws, regulations, bylaws and codes of practice in respect of use, sale, supply, storage and transportation of the Products, as are applicable from the place of receipt to Customer’s (and its customer’s) location;
3.18.3 obtain and pay for and at all times maintain and comply with and conform to, all necessary or desirable licences, authorisations (including manufacturing and marketing authorisations), approvals, consents, permissions and certificates of origin required for the use, sale, supply, storage and transportation of Products;
3.18.4 keep all inventory, stocks and supplies of Products in conditions appropriate for their storage (including, where applicable, temperature controlled) and to avoid deterioration and contamination; and
3.18.5 on or before delivery of Products to Customer’s customer or a carrier check the Products in accordance with its regulatory requirements and give them adequate advice and information as to the handling and storage of the Products.
4.1 Notwithstanding delivery, title to and ownership of the Products shall not pass to Customer until Sigma has received in full (in cleared funds) all sums due to it in respect of:
4.1.1 the Products; and
4.1.2 all other sums which are or which become due to Sigma from Customer on any account;
4.2 Until Payment, Customer shall:
4.2.1 hold the Products on a fiduciary basis as Sigma’s bailee;
4.2.2 hold the Products in good, saleable condition;
4.2.3 keep an up-to-date list of the location of Sigma’s property and present this to Sigma upon request;
4.2.4 store the Products separately from other goods or in any way so that they remain readily identifiable as Sigma’s property; and
4.2.5 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products.
4.3 Customer may resell the Products before Payment solely on the following conditions:
4.3.1 any sale shall be effected in the ordinary course of Customer’s business at full market value;
4.3.2 any such sale shall be a sale of Sigma’s property on Customer’s own behalf and Customer shall deal as principal when making such a sale;
4.3.3 Customer shall keep the proceeds of sale separate from any money or property of Customer or third parties; and
4.3.4 Customer shall still be responsible for paying to the full value of the Payment. If Sigma requires, Customer shall authorise and direct such third party buyer to pay to Sigma a like part of the sum due to Customer in respect of the Products sold and assign to Sigma such part of the debt owed to Customer by the third party.
4.4 Sigma may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of Sigma. Sigma may also require Customer at Customer’s cost, within three days of Sigma’s request, to deliver up to Sigma or make available to Sigma for collection from a single accessible collection point as Sigma requires all Products which are the property of Sigma. Customer hereby grants to Sigma for Sigma and its agents, staff, officers, employees and contractors an irrevocable licence to enter for the purpose of recovering possession of the Products any premises then occupied by or in the ownership or possession of Customer or Customer’s customer. Customer shall indemnify Sigma against all claims, losses, damages, liabilities, costs and expenses so arising in exercising its rights under this Clause 4.4.
4.5 Sigma shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Sigma.
4.6 On termination or expiry of this Contract, howsoever arising, Sigma’s rights contained in this Clause 4 shall remain in effect.
5.1 Subject to the rest of this Clause 5, Sigma warrants that, as at delivery, the Products shall be undamaged, free from material defects, have the minimum shelf life stipulated by Sigma (which shall be a minimum of 12 months from the date of delivery, unless Sigma designates anything to the contrary in writing), and conform to Sigma’s marketing authorisation for the Product in the UK and the description of the Product (by strength and pack size) in this Contract or by Sigma in writing for that Product.
5.2 Customer shall be responsible for ensuring that its appropriate representative checks the Products for obvious damage on delivery in accordance with Clause 3.13.
Sigma shall not have any Liability for any obvious loss or damage on delivery unless Customer informs and provides full details to Sigma in writing within one Service Day.
5.3 Subject to Clause 5.5, Sigma shall at its option, within a reasonable time:
5.3.1 replace; or
5.3.2 repay an appropriate portion of the purchase price of; or
5.3.3 provide a credit note in respect of a reasonable part of; the delivered Products which are not in conformance with the warranty set out in Clause 5.1.
5.4 Sigma shall not have any Liability for providing Products to the extent caused by Sigma’s compliance with and reliance on Customer’s instructions or requirements.
5.5 Sigma’s Liability for defective or damaged Products is subject to:
5.5.1 Customer informing Sigma in writing of any claim promptly upon discovery of the defect or damage and in any event within one month (other than anything that involves potential danger to health or for Products requiring temperature controlled storage, in which case it shall be no more than one Service Day) of discovery, specifying with reasonable detail the way in which it is alleged that the Products do not conform to this Contract;
5.5.2 Customer allowing Sigma to take all control over decisions in respect of dealing with the issue including with third parties;
5.5.3 Customer having provided Sigma with its name and address, quantity and full description of the Products affected, Sigma’s invoice number and such other information and documentation as Sigma reasonably requires at the same time as the written information in Clause 5.5.1;
5.5.4 Customer showing to Sigma’s reasonable satisfaction that the defect or damage is solely attributable to Sigma’s (or Sigma’s subcontractors’) defective materials or workmanship and not: (a) from normal use; or (b) any acts or omissions by anyone after delivery by Sigma (including Customer’s carrier);
5.5.5 the Products having not been: (a) misused or subjected to neglect, improper or inadequate care or carelessness (including subject to wrong storage conditions or open to contamination); or (b) dealt with, used or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of Sigma; or (c) adversely affected by anything done or not done after the Products had been delivered by Sigma (including any accident or attempt at alteration, change or modification or inspection);
5.5.6 Customer holding the Products safely and securely in good condition;
5.5.7 Customer allowing and procuring for Sigma (or Sigma’s representatives) the opportunity to have access to and inspect the Products;
5.5.8 Customer having paid Sigma on time and in full; and
5.5.9 if and to the extent Sigma requests, at Sigma’s option, within five Service Days of Customer informing Sigma of the defective or damaged Products, Sigma collecting such Products or Customer returning such Products carriage and insurance paid at Customer’s risk to Sigma’s premises or such other location stipulated by Sigma and carefully packed to avoid damage in transit. Unless and until Sigma inspects, repairs or receives such Products, Customer shall hold such Products safely and securely in good condition. Any returns shall be dealt with in accordance with Clause 6.1.
5.6 The warranty contained in this Clause 5 is specifically limited to Customer. No warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
5.7 If Customer makes an invalid claim under the warranty, Sigma may charge Customer for its fees and costs of examining, testing, storing and replacing the Products and dealing with the claim and removing and delivering the Products.
5.8 Except where expressly provided for within this Contract, Sigma excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Products.
6. PRODUCT RECALL AND OTHER RETURNS
6.1 For any returns of Products, Customer shall:
6.1.1 provide all information reasonably required by Sigma with the returned Products, including the name and address of Customer, quantity and full description of the Products, invoice number in respect of the Products, and the reason for the return.; and
6.1.2 ensure that from the time the Products are delivered by Sigma in accordance with Clause 3.8 until they are received back by Sigma, Customer complies at all times with the provisions described in Clauses 5.5.5 and 5.5.6.
6.2 In the event of recall of the Product due to hidden defects and/or severe adverse reaction, Customer shall provide all reasonable assistance to Sigma in accordance with Sigma’s reasonable requirements and, subject always to Clause 7, Sigma shall reimburse Customer for the quantities of the Product recalled in accordance with Clause 5 together with Customer’s other reasonable costs and losses in sending the Products back. This is subject to Customer handing over full control and management of the Product recall to Sigma and complying with Sigma’s reasonable requirements.
6.3 At Sigma’s absolute discretion, if Sigma accepts return or the Products following delivery without Customer otherwise having a right to return under this Contract, this discretionary decision to accept a return may be subject to Customer first paying a re-stocking or cancellation fee and subject to any conditions that Sigma stipulates (including that Sigma will not exercise this discretion to allow a return for Products that are Specials, Controlled Drugs or Refrigerated lines), and provided that the Products have not been damaged, modified or in any way changed or altered after Sigma’s delivery.
6.4 If Sigma takes a return of a Product, Customer shall return it to Sigma or Sigma shall collect it (at Sigma’s option) within three Service Days of Customer informing Sigma of its desire for the Product to be returned.
6.5 If Customer returns or attempts to return a Product to Sigma that had not been supplied to Customer by Sigma, Sigma may charge Customer for its fees and costs at its then applicable usual rates, but in any event to cover Sigma’s costs.
7.1 This Clause 7 prevails over all other Clauses and sets forth the entire Liability of Sigma, and the sole and exclusive remedies of Customer, in respect of:
7.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or of any goods or services in connection with this Contract; or
7.1.2 otherwise in relation to this Contract or entering into this Contract.
7.2 Sigma does not exclude or limit its Liability for:
7.2.1 its fraud; or
7.2.2 death or personal injury caused by its Negligence; or
7.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
7.2.4 any other Liability which cannot be excluded or limited by applicable law.
7.3 Subject to Clause 7.2, Sigma does not accept and hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of this Contract.
7.4 Subject to the Clause 7.2, Sigma shall not have any Liability in respect of any:
7.4.1 indirect or consequential losses, damages, costs or expenses;
7.4.2 loss of actual or anticipated profits;
7.4.3 loss of contracts;
7.4.4 loss of use of money;
7.4.5 loss of anticipated savings;
7.4.6 loss of revenue;
7.4.7 loss of goodwill;
7.4.8 loss of reputation;
7.4.9 ex gratia payments;
7.4.10 loss of business;
7.4.11 loss of operation time;
7.4.12 loss of opportunity; or
7.4.13 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or Sigma or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 7.4.2 to 7.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
7.5 Subject to Clause 7.2, the total aggregate Liability of Sigma shall be limited to the greater of: (a) £10,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by Customer to Sigma under this Contract.
7.6 The limitation of Liability under Clause 7.5 has effect in relation both to any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
7.7 In this Contract:
7.7.1 “Liability” means liability in or for breach of contract (including liability under any indemnity), tort (whether deliberate or not), Negligence, breach of statutory duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or unenforceability of any term of this Contract (and for the purposes of this definition, all references to “this Contract” shall be deemed to include any collateral contract, but each Order shall constitute a separate “Contract”);
7.7.2 “Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
8.1 Customer shall pay to Sigma the Price and other sums due under this Contract and by the times required.
8.2 Unless otherwise stipulated in any Quotation or any Long Term Agreement (or otherwise agreed between the Parties in writing):
8.2.1 Sigma may issue an invoice to Customer for the Price (or the relevant part) and other sums due in connection with the Price on or prior to delivery of the Products; and
8.2.2 Customer shall pay Sigma in full prior to delivery of the Products.
8.3 Where Sigma requires payment in advance of delivery of the Products, delivery of the Products is conditional on Sigma first receiving the advanced payment in cleared funds in full.
8.4 Where Sigma agrees in writing to extend credit to Customer (which Sigma may change by informing Customer in writing with immediate effect from time to time), then unless otherwise agreed in writing between the Parties and subject to any credit limit that Sigma has for Customer (as updated by Sigma informing Customer in writing with immediate effect from time to time)
8.4.1 Customer shall pay Sigma within 30 days of the date of invoice; but
8.4.2 if and for as long as Customer is a member of any buying group with whom Sigma has a special relationship from time to time, Customer shall pay Sigma within the payment terms agreed in writing between Sigma and that buying group.
8.5 The Price and any other sums due under this Contract are exclusive of any value added tax or other sales, import and export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Price and other sums due.
8.6 Customer shall pay Sigma by any payment method reasonably stipulated by Sigma. No payments shall be by cash.
8.7 Where Sigma requires for payment by letter of credit, Customer shall conform to such requirements for the letter of credit as are stipulated by Sigma, including Sigma’s receipt of the letter of credit on or before Sigma’s despatch of the Product. Unless Sigma specifies in writing to the contrary, the letter of credit shall be confirmed, irrevocable and without recourse, providing for payment at sight, allowing partial deliveries and collections, and issued and confirmed by first class banks to Sigma’s satisfaction. The costs for the letter of credit shall be payable by Customer. If Customer fails to provide the required letter of credit, Sigma may exercise the rights in Clause 8.11.
8.8 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, payment shall be in the currency in force in England from time to time.
8.9 Payment shall be deemed made when Sigma has received cleared funds in full.
8.10 If the Customer receives any communication purporting to be from Sigma, explaining where the Customer should make payment, the Customer shall be responsible, before making payment, for taking all reasonable steps to verify with its usual contacts at Sigma that the account payment instruction is genuinely Sigma’s account.
8.11 Payment of all sums due to Sigma under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
8.12 If Customer is late in paying any part of any monies due to Sigma under this Contract or any other contract between the Parties, Sigma may (without prejudice to any other right or remedy available to it whether under this Contract or by any statute, regulation or bye-law) do any or all of the following:
8.12.1 charge interest and claim other costs on the amount due but unpaid as permitted under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until payment (after as well as before judgement), such interest to run from day to day and to be compounded monthly; and
8.12.2 sell or otherwise dispose of any Products which are the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
8.12.3 suspend the performance of this Contract and any other contract between the Parties until Sigma has been paid in full.
9. TERM AND TERMINATION
9.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.6 and, unless terminated earlier by either Party exercising any right of cancellation or termination as set out in this Contract, shall continue in force until the later of:
9.1.1 Customer having paid in full for all sums due under this Contract; and
9.1.2 Sigma having delivered all the Products to Customer.
9.2 Either Party may terminate this Contract immediately by notice in writing to the other Party if:
9.2.1 the other Party is in material breach of any of its obligations under this Contract or any other contract between the Parties which is incapable of remedy; or
9.2.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract or any other contract between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
9.2.3 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986), or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt.
9.3 In any event, Sigma may terminate this Contract if Customer is at least seven days’ late in paying any sum due under this Contract or any other contract between the Parties.
9.4 Termination or expiry of this Contract shall be without prejudice to any accrued rights or remedies of either Party.
9.5 Termination or expiry of this Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
9.6 Upon termination or expiry of this Contract for any reason:
9.6.1 Sigma shall cease to perform this Contract; and
9.6.2 all outstanding sums shall become immediately payable, whether invoiced or not.
10. FORCE MAJEURE
10.1 Save for obligations in respect of payment of the Price, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Contract which is caused by any circumstances beyond its reasonable control including any act of God, actions or omissions of third parties not in the same group as the Party seeking to rely on this Clause (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, actual or threatened or suspected terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual traffic volumes, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third party software, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation (“Event of Force Majeure”), regardless of whether the circumstances in question could have been foreseen.
10.2 Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
10.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
10.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
10.5 If there is an Event of Force Majeure, either Party may terminate this Contract immediately by notice to the other, in which event neither Party shall have any Liability by reason of such termination.
10.6 If Sigma has contracted to provide identical or similar products to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, Sigma may decide at its absolute discretion which contracts it will perform and to what extent.
11.1 Any notice required or authorised to be given under this Contract shall be in writing and shall be served by personal delivery or by letter sent by a generally commercially recognised international express courier or by facsimile addressed to the relevant Party at its address stated in this Contract or at such other address or facsimile number as is notified by the relevant Party to the other Party for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other Party.
11.2 Any notice sent by letter by international express courier shall be deemed to have been served two Service Days after the same shall have been despatched and any notice so given by facsimile shall be deemed to have been served upon receipt of a confirmation of delivery facsimile from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched and delivered or a confirmation of delivery facsimile received.
12. USE OF INFORMATION
12.1 Sigma may use data collected about Customer and Customer’s representatives for:
12.1.1 credit checks, credit searches, credit scoring, credit insurance and securitisation, and Sigma may provide or exchange that information with third parties (including bankers and financiers) for that purpose;
12.1.2 administering Customer’s account and Orders;
12.1.3 customer, product, market and statistical analysis and research; and
12.1.4 sending details of further products and services that Sigma or its associated people or organisations are involved with.
12.2 Sigma may also supply any such information to any of Sigma’s suppliers or businesses that Sigma is involved with. This is to help to ensure sufficient stock levels and appropriate customer service and products.
12.3 Following Customer’s request, Sigma shall provide Customer with details of third parties to whom Sigma discloses any data about Customer.
12.4 Customer acknowledges that Sigma may record telephone calls for quality control, staff training and service improvement purposes.
13.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Contract or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party’s other powers, rights or remedies under this Contract or at law.
13.2 If any Clause shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or part of any Clause, all of which shall remain in full force and effect.
13.3 Nothing in this Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.
13.4 A person who is not a Party has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
13.5 Customer is responsible for complying with any applicable government export control laws and regulations.
13.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language. If:
13.6.1 Customer is domiciled in the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Contract shall be the English courts.
13.6.2 Customer is not domiciled in the European Union, any dispute which may arise out of or in connection with this Contract shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
Version: 007. September 2018