1.1 These General Sales and Delivery Terms, as updated by DKSH from time to time (“Terms”) shall govern all present and future orders by any person or firm ("Customer") who wishes to purchase products ("Products") or associated services ("Services") from DKSH. These Terms apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.2 An order by the Customer constitutes an offer by the Customer to purchase Products and/or Services in accordance with these Terms ("Order"). An Order shall only be deemed accepted when DKSH accepts the Order, whether by written notice or by performance by it of the Order, whichever is earlier. DKSH is under no obligation to accept Orders. No accepted Order may be cancelled unless DKSH gives consent in writing to such cancellation. An Order, DKSH’s acceptance (if applicable) and these Terms together constitute the contract ("Contract"). If the Customer requests short term delivery/performance upon which DKSH agrees, the Customer agrees that the invoice together with the Terms shall form the basis of the Contract.
1.3 Notwithstanding that DKSH may have provided the Customer with price information, technical specifications, brochures, quotations and/or other information with respect to the Products and/or Services, such information is not binding and is produced for the sole purpose of giving an approximate idea of the Products and/or Services. They shall not form part of the Contract nor have any contractual force, provided nothing to the contrary has been agreed upon in writing.
2. Prices and Import Restrictions
2.1 Products shall be sold in accordance with the Incoterms 2020 specified in the Contract. All prices for the Services shall be as provided in the Contract.
2.2 Unless otherwise agreed in writing, all prices quoted are exclusive of V.A.T. and all other applicable taxes, insurance charges and duties which shall be payable by the Customer in addition to the price of the Products and/or Services.
2.3 Unless otherwise agreed in writing, the Customer shall obtain at its own risk and expense any import license, consents or other official authorisation for the Products.
3. Terms of Payment
3.1 Unless otherwise agreed in writing, payment shall be made within thirty (30) days of the date of the invoice, without set-off or counterclaim. Payment shall be made in the currency and to the account stated on the invoice.
3.2 If payment has not been received by the due date, interest shall be applied without prior notice or reminder at the rate of 4% above the prevailing Bank of England base rate, per annum, from the due date until payment in full has been received. The Customer shall reimburse DKSH on demand against the reasonable costs incurred by DKSH or its agent in recovering outstanding invoices.
4. Customer’s Insolvency and Breach
Without prejudice to any other rights and remedies available to DKSH, DKSH may: (a) treat any Contract as repudiated and/or suspend deliveries of Products and/or performance of Services without liability to the Customer, (b) claim damages from the Customer, and (c) accelerate and make immediately due the payment of any outstanding sums if the Customer: (i) makes any voluntary arrangement with its creditors or is subject to an administrative order, goes bankrupt (in the case of an individual) or insolvent (in the case of a body corporate) or into liquidation, or receives a petition for its compulsory winding up; (ii) ceases, or threatens to cease, to carry on business; (iii) breaches its obligations under a Contract and does not remedy such breach within the period required by DKSH; (iv) a receiver or administrative receiver is appointed over any of Customer’s assets (v) there is a material change in the control or ownership of the Customer, or (vi) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy. DKSH shall be entitled to rely on any of the remedies set out in this clause 4 if the Customer becomes subject to any of the events listed in this clause 4 or DKSH reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
5.1 While DKSH will use reasonable endeavours to deliver Products and/or perform Services by the dates quoted, any dates quoted are approximate only and are without any responsibility on the part of DKSH. Time for performance of DKSH's obligations is not of the essence. DKSH shall notify the Customer as soon as is reasonably practicable in case of delay.
5.2 Provided there are no explicit agreements to the contrary, DKSH may deliver the Products by instalments, which shall be deemed a separate contract and invoiced and paid for separately. DKSH shall not be liable for discrepancies in deliveries up to and including 10% more or less than the quantity of Products ordered, (calculated on the basis of the entire quantity to be delivered and not the individual partial quantities actually delivered). Notwithstanding the foregoing, upon receipt of notice from the Customer that the wrong quantity of Products was delivered, DKSH may at its option make a pro rata adjustment to the invoice for Products.
5.3 If the Customer fails to take delivery of Products, in addition to the other rights and remedies available to DKSH, DKSH may (i) store Products and charge the Customer for all related costs and expenses (including insurance), and/or (ii) upon reasonable notice to the Customer, resell or otherwise dispose of part or all of the Products and charge the Customer for any shortfall below the Contract price, plus storage and selling costs.
6. Transfer of Risk and Retention of Title
6.1 The transfer or risk of loss or damages to the Products shall be in accordance with the Incoterms 2020 specified in the Contract.
6.2 Notwithstanding delivery and the transfer of risk in any Products, title to the Products shall not pass to the Customer and shall remain in DKSH until the earlier of a) DKSH receiving full payment for the Products, as well as any other amounts due in connection with any Contract by the Customer and b) the Customer resells the Products, in which case title to the Products shall pass to the Customer in accordance with clause 6.5. The Customer agrees upon request to execute and furnish to DKSH any and all documentation necessary for the perfection and maintenance of DKSH’s security interest in any Product purchased by the Customer.
6.3 Until title to the Products has passed to the Customer, the Customer shall a) handle and store such Products so as to enable them to be identified as the property of DKSH b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products, c) and following delivery, maintain the Products in satisfactory condition and shall at its own expense keep them insured against all risks for their full price.
6.4 At any time before title to the Products passes to the Customer, DKSH may require the Customer to deliver up all the Products it is possession and/or enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
6.5 The Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before DKSH has received payment for the Products. However if the Customer resells the Products before that time, it does so as principal and not as DKSH's agent and title to the Products shall pass from DKSH to the Customer immediately before the time at which resale by the Customer occurs. Where any Product is sold by the Customer before it has been fully paid for, the Customer shall receive and hold the proceeds of sale subject to a prior security interest in favour of DKSH for all payment due to DKSH for such Product.
7. Inspection and Acceptance
7.1 On delivery of Products and/or upon completion of performance of the Services, the Customer shall inspect the Products for defects and determine if there are any deficiencies in the Services.
7.2 The Customer shall report, in writing, any defects or deficiencies to DKSH before processing and at the latest within eight (8) days of delivery of Products and/or performance of Services - in case of hidden defects, immediately after their discovery and at the latest within six (6) months of delivery of Products and/or performance of Services- failing which the Customer is deemed to have accepted the Products or Services and all claims for defects, shortages or non-delivery shall thereafter be wholly barred.
7.3 Timely reports of defects or deficiencies does not relieve the Customer of the obligation to pay and accept all Products or Services as ordered.
8.1 Subject to the limitations on its liability set out herein, and unless otherwise agreed in writing, DKSH warrants that on delivery:
a) the Products shall conform in all material respects with the specifications provided in the Contract;
b) the Products shall be free from material defects in design, material and workmanship; and
c) the Services shall be performed with reasonable skill and care.
8.2 SUCH WARRANTIES ARE PROVIDED TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979), IN FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.3 Subject to clause 8.4, if a) the Customer gives notice in writing to DKSH promptly and in any event within eight (8) days following either i) delivery of the Products or ii) completion of the Services (whichever is later) that some or all of the Products do not comply with the warranty set in clause 8.1 and/or in the case of a latent defect, immediately after its discovery and in any event within six (6) months from delivery, DKSH shall, cooperating reasonably and in good faith with the Customer (but where an agreement cannot be reached, at DKSH's option), repair, replace or refund the defective Products or modify and re-perform the Services, (provided DKSH has had reasonable opportunity to inspect the Products and/or investigate the non-compliant Services.) The remedies set out in this clause 8.3 shall be the Customer's sole remedy for breaches of clause 8.1.
8.4 DKSH shall not be liable for the Products' failure to comply with the warranty set out in clause 8.1 if a) the Customer makes any further use of such Products after giving notice in accordance with clause 8.3; b) the defect arises because the Customer failed to follow DKSH's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same; c) the Customer alters or repairs such Products without the written consent of DKSH; d) the defect arises as a result of unauthorised, inappropriate, improper use, fair wear and tear, willful damage, negligence or abnormal storage or working conditions by the Customer or third parties or (iii) other reasons beyond the control of DKSH (including, but not limited to where the Products differ from the specification as a result of changes made to comply with applicable statutory or regulatory requirements).
8.5 Except as provided for in this clause 8, DKSH shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 8.1.
8.6 Any return of Products to DKSH in connection with a valid warranty claim can only be done upon DKSH’s prior written permission and instructions. Such returned Products shall at all times remain for the account and risk of the Customer.
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. Nothing in the Contract limits any liability which cannot be legally limited, including liability for a) death or personal injury caused by negligence; b) fraud or fraudulent misrepresentation; or c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
9.2 Subject to clause 9.1, DKSH's total liability to the Customer shall not exceed 100% of the total sums paid and/or payable by the Customer for Products under the Contract.
9.3 IN NO EVENT SHALL DKSH OR ANY OF ITS AFFILIATES OR EMPLOYEES BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON FOR THE FOLLOWING TYPES OF LOSS: a) loss of profits, b) loss of sales or business, c) loss of agreements or contracts, d) loss of anticipated savings, e) loss of use or corruption of software, data or information, f) loss of or damage to goodwill; and g) any indirect, special or consequential loss.
9.3 This clause 9 shall survive termination of the Contract.
10. Force Majeure
10.1 DKSH shall not be liable to the Customer for breach of the Contract or otherwise be liable for any failure or delay in the performance of its obligations if such delay or failure results from an event or circumstance beyond DKSH’s reasonable control ("Event of Force Majeure") including but not limited to a failure of DKSH’s suppliers to deliver, lack of raw material or energy, fire, act of God, interruptions in traffic, to the extent that such events were not foreseeable, or war, riots, acts of terrorism, pandemics, endemics, strikes, lock-outs, order, law, regulation, demand, or requirement of any governmental body or agency.
10.2 Any obligations of DKSH under any Contract will be suspended for the period of the Event of Force Majeure. If the Event of Force Majeure extends beyond sixty (60) days, either party may terminate the Contract on immediate notice without any liability to the other, except that the Customer shall remain liable for payment to DKSH for any Products delivered and/or Services performed prior to termination.
11. Packaging Material
11.1 DKSH shall not take back packaging and transport material unless a legal duty to do so exists under applicable law.
11.2 The Customer agrees to dispose of the packaging material at its own expense.
12.1 The Customer shall treat all Confidential Information (as defined below) as strictly confidential and shall not disclose Confidential Information, or cause or allow it to be disclosed, to any third party or use Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under these Terms or a Contract between DKSH and the Customer. The Customer shall disclose Confidential Information only to those of its officers and employees on a need to know basis in connection with these Terms or a Contract between DKSH and the Customer. Customer shall ensure such officers and employees are bound by confidentiality obligations at least as restrictive as those contained in this clause. In any event, the Customer remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.
12.2 “Confidential Information” means any information contained in a Contract between DKSH and the Customer and any information provided by or on behalf of DKSH to the Customer (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to the Customer at the time of disclosure as demonstrated by the Customer’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of the Customer, (iii) has been rightfully received by the Customer from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by DKSH for release or (v) is independently developed without benefit of the Confidential Information.
12.3 This clause 12 shall survive the termination or expiration of any Contract by five (5) years.
13. Compliance with laws
13.1 Unless otherwise agreed in writing, the Customer shall be responsible for compliance with statutory and regulatory requirements relating to export, import, transport, storage and use of the Products and/or Services.
13.2 Insofar as the performance of a Contract by DKSH would result or would likely result in the infringement of national, foreign or international (re-)export control laws or other laws, DKSH shall be entitled to rescind the respective Contract.
13.3 If export control checks are required, the Customer will provide DKSH, immediately upon request, with all information pertaining to the final recipients, destination and purpose of the Products to be supplied by DKSH as well as any related export control restrictions.
13.3 In all instances, the Customer must comply with (re-)export control regulations of the United Kingdom, the European Union and the United States.
13.4 Moreover, the Customer shall comply with all applicable anti-bribery and anti-slavery laws (including but not limited to (i) the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act of 1977; (ii) anti-slavery including the UK Modern Slavery Act 2015; (iii) anti-facilitation of tax evasion including the Criminal Finances Act 2017; (iii) anti-trust and competition including the UK Competition Act 1998) and, in particular, shall not adopt any practices that may have an adverse effect on DKSH. All forms of bribery, corruption, extortion or embezzlement are strictly prohibited. The Customer shall never offer, pay, solicit or accept any bribes or other forms of illegal or unethical inducement in business relationships or especially when dealing with public officials and/or healthcare professionals, and they shall never make use of third parties to do such things on their behalf.
13.5 The Customer shall indemnify DKSH from any and all losses, damages, penalties, fines and/or costs of any kind that DKSH incur arising from, or relating to, any breach of this clause 13.
14.1 The Contract constitutes the entire agreement between DKSH and the Customer and supersedes any previous agreement or arrangement between them relating to the subject matter of the Contract. DKSH and the Customer do not rely on any statement, representation, assurance, undertaking, promise or warranty (whether made innocently or negligently) that is not set out in the Contract. DKSH and the Customer shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
14.2 No variation of the Contract shall be effective unless agreed in writing by DKSH and the Customer.
14.3 Failure by DKSH to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
14.4 If any provision or part of a provision of these Terms shall be found by any court of competent jurisdiction to be invalid, illegal or unenforceable, it shall be deemed deleted but should not affect the rest of the Terms, all of which shall remain in full force and effect.
14.5 The Customer may not assign, novate, transfer or sub-contract all or any of its rights or obligations under any Contract without the prior written consent of DKSH.
14.6 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15. Applicable Law, Jurisdiction and Collection Proceedings
15.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales to the exclusion of any conflict of laws including, but not limited to, the United Nations Convention on Contracts for the International Sales of Goods.
15.2 The place of performance for all obligations shall be DKSH’s principal place of business in the UK at 32 Threadneedle Street, London, EC2R 8AY, provided that nothing to the contrary has been agreed upon expressly in writing. For Customers domiciled abroad, DKSH’s principal place of business in the UK shall be the recognised place for debt collection proceedings.
15.3 DKSH and the Customer irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation, provided that the Parties have not expressly and in writing agreed to mediation or arbitration. DKSH reserves the right to initiate debt collection or other proceedings against the Customer in any other place provided by law.
Updated September 2022