Terms and Conditions of Sale and Delivery - Products and Services

CONDITIONS OF SALE AND DELIVERY

 

1.     APPLICABLE CONDITIONS

         i)     These Conditions of Sale and Delivery supersede all previous representations, correspondence and negotiations and constitute the entire Agreement (The "Agreement" being a contract for the purchase and sale of goods) between Seller (being MP Bio Science Ltd. t/a Whitelabelsupps.com, 3 Harrison Court, Hilton Business Park, Hilton, Derby. DE65 5UR, Registered in England Number 6371250) and Buyer (being the person who accepts a quotation off the seller for the sale of the goods or whose order for the goods is accepted by the Seller). With the exclusion of all other terms, conditions and warranties shall not be varied or amended save by written agreement (including telex, cable, facsimile transmission and comparable means of communication) signed on behalf of both parties and it is expressly agreed that acceptance by the buyer of the delivery of any of the goods described in our invoices shall be conclusive evidence of the buyers acceptance of this clause and of these Conditions of Sale and Delivery.

         ii)    All orders placed, whether after a quotation or otherwise are subject to these conditions of sale and delivery and no order shall be binding on the seller unless and until it has been confirmed in writing on its Order Confirmation form.

 

2.     PRICES

         (i)    Prices shall be those ruling at the date of invoicing. The Seller reserves the right without notice to increase prices between the date of acceptance of order and invoicing to cover increases in raw materials, labour, overheads, exchange rate fluctuations and/or any cost increased beyond its reasonable control and to invoice at the price prevailing at the date of invoice.

         (ii)  All prices are exclusive of and subject to any Value Added Tax or other sales tax at the rate prevailing from time to time, export duties, import duties, excise duties and any other imports or duties payable in respect of the Goods.

 

3.     TERMS OF PAYMENT

         (i)    Prices quoted are net. Payment is due at time of dispatch unless otherwise agreed in writing by the Seller. The seller shall only give terms of over 30 days from date of invoice by written agreement signed by 2 directors in any event. For the purpose of this Agreement "payment" constitutes receipt of value in Seller's bank account enabling it to freely deal with the amount received. If payment is not made by the Buyer on the due date, all balances outstanding become immediately due for payment and the Seller may, without prejudice to its other remedies under the Agreement and regardless of any previously agreed terms of payment

a)      charge interest from the due date on the outstanding balances at 4% above the base rate of the Royal Bank of Scotland plc from time to time in force

b)     take action to recover the outstanding balances

c)      terminate the transaction without giving prior notice to the Buyer

d)     cancel without notice any orders already confirmed to the Buyer which have not been excluded or are in the course of production, and in all cases the Buyer shall recompense the Seller in full for all damages and losses incurred as a result of the actions taken.

         (ii)  If the Buyer defaults in any of his commitments to the Seller or makes or offers to make any arrangement or composition with his creditors or commits an act of bankruptcy or has a petition for bankruptcy presented against him or has a receiver appointed over his assets or being a company a petition is presented to wind it up or it enters into liquidation (other than for the purposes of a solvent amalgamation or reconstruction which becomes effective) or has a receiver or administrator appointed over its assets then in any such case the Seller shall have the right (without prejudice to any of its other remedies) to forthwith determine any contract then subsisting and/or cancel any uncompleted order or to withhold or suspend delivery in whole or in part.

 

4.     PACKING

         Packing cases and pallets are returnable and their cost is excluded from Selling prices. The Seller reserves the right to charge in full for all packing cases or pallets if not returned within two calendar months from the date of despatch in serviceable condition carriage paid to the Seller's works.

 

5.     DELIVERY

         Every effort will be made to meet the delivery date indicated but all delivery dates are approximate and in cases of delayed delivery, the Seller shall have the right to invoice the Buyer for any balance of order remaining undelivered and thereupon payment for such balance shall immediately become due and the Seller shall not be bound to despatch such balance to the Buyer except against payment.

         Each part delivery shall be considered a separate transaction which will not affect the rights or liabilities of either party under the contract which will remain in full force and effect as to the remaining deliveries.

         If payment becomes overdue on any one delivery or the Buyer is in default under any other contract with the Seller, the Seller shall be entitled (without prejudice to its other rights) to withhold further deliveries until the overdue payment (together with interest) has been received or to treat the said contract as repudiated and to repossess any Goods delivered.

         Non-delivery or delayed delivery due to war, civil commotion, strikes, lock-outs, machine breakdown, fire, force majeure or any cause whatever beyond the Seller's control will not involve liability on the part of the Seller, and the Seller shall be entitled at his option to either cancel the order or any part thereof or to an extension of time for delivery corresponding to the duration of the event causing delay.

 

6.     CARRIAGE

         Carriage will be charged on orders under £250 in value as specified on the invoice.

 

7.     COMPLAINTS, DAMAGES, DEFICIENCIES AND/OR LOSS IN TRANSIT

         It shall be the Buyers duty to inspect the Goods on delivery.

         No claim for damage, deficient receipt or loss will be considered unless the Seller has been given an opportunity of inspecting the goods before removal from point of delivery and notice in writing is given both to the Seller and the Carrier within the following time limits:-

         (i)    Damage to consignment of part thereof - within 3 days of receipt.

         (ii)  Short delivery of a consignment - within 3 days of the delivery of the consignment.

         (iii) Non-delivery of the total consignment:

                (a)    If despatched by road in Great Britain or by any means of transport in Northern Ireland or Eire within 10 days of date of advice or despatch.

                (b)    If despatched by rail in Great Britain - within 21 days of date of advice or despatch.

         Where goods are accepted without being checked the delivery note of the Carrier concerned must be signed "not examined". The goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen days from notification of claim within which period the Seller shall have the right to visit the Buyer's works to investigate the goods. Any non-compliance with this condition shall render the Buyer's claim void.

 

8.     DEFECTIVE PRODUCTS

         (i)    In the event of Goods supplied being proved to the satisfaction of the Seller to be of defective quality the Seller’s liability shall not extend beyond refunding the invoice price or, at the Seller's option, replacing such goods. No claim concerning the quality of goods will be considered unless made in writing to the Seller within the following time limits:

                (a)    Where physical damage is found - 14 days after receipt of goods.

(b)    Other defects - within 14 days of the defect being located but not later than 30 days after despatch from the Seller's Works.

         No goods will be accepted for return whatever reason without the Seller's written approval and where it is agreed by the Seller that goods will be returned they will be so returned within 90 days from the date of delivery to the Buyer. Goods returned to and accepted by the Seller as such will be replaced as originally ordered or will be credited but shall not form part of any claim for work done by the Buyer, transport costs, consequential damages or any expense whatsoever incurred.

         Defects in quality or dimensions in any delivery shall not be a ground for cancellation of the remainder of the order. All works executed by the Seller on defective information or products supplied by the Buyer, shall be charged in full. Each delivery shall stand as a separate contract.

         (ii)  Save as aforesaid and as provided in Section 12 of the Sale of Goods Act 1979 the Seller shall not be liable to the Buyer for any loss or damage whatsoever suffered as a result of a defect in quality or the fact that the goods are not fit for a particular purpose and without prejudice to the generality of the foregoing:

                (a)    any implied term, condition or warranty statutory or otherwise as to the quality of the goods sold or their fitness for any particular purpose is hereby excluded; and

                (b)    the Seller shall be under no liability for any loss, injury or damage (whether direct, indirect or consequential) howsoever arising including (but not by way of limitation) any loss or damage in respect of loss of profits or income or business or use of whatsoever kind that may be suffered by the Buyer or any third party.

                (c)    notwithstanding any description of the Goods which the Seller may have given or any sample which the Seller may have supplied, this sale shall not constitute a sale by description or a sale by sample.

         (iii) Without prejudice to the generality of the foregoing no warranty or representation given by or on behalf of the Seller including but not by way of limitation any advice as to the use or performance of goods supplied by the Seller shall be binding upon the Seller unless specifically stated in writing to be incorporated in the contract.

         (iv) For the avoidance of doubt, no liability for death or personal injury is excluded.

 

9.     QUANTITY VARIATIONS

         Any deficiency or surplus not exceeding 10% of the quantity ordered shall be considered as due execution of the contract and charged pro rata.

 

10.   TOLERANCES

         All goods supplied will be subject to the tolerances generally accepted in the trade for Health Supplement Products.

 

11    WARRANTIES

         The Seller expressly warrants the Goods (unless otherwise stated) to be at the date of despatch of merchantable quality and of the nature and substance described and to comply with the Food Act 1984, Weights and Measures Acts and any other Statutory requirements or regulations dealing with the sale of food. Where a Buyer supplies his own ingredients for blending and repacking, this warranty does not extend to any fault in the ingredients supplied by the Buyer.

         All conditions, guarantees or warranties including guarantees or warranties as to quality or description of the goods or use of those goods under any conditions whether known or made known or not, or resulting from designs or technical assistance rendered at the Buyer's request and whether expressed or implied by statute or common law are hereby excluded.

 

12    F.O.B.

         Where goods are sold F.O.B. the responsibility of the Seller for the goods shall cease the moment the goods are placed on board ship.

 

13    CONSEQUENTIAL LOSS

         The Seller shall not be liable for any consequential damage or loss arising directly or indirectly out of goods supplied under the contract.

 

14    INDEMNITY

         The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses for which the Seller may become liable through any work to be done in accordance with the Buyer's specification which is an infringement of a Patent or a Registered Design.

         The Buyer will indemnify the Seller in respect of any damage suffered or liability incurred by the Seller whatsoever as a result of any breach by the Buyer of any of these Conditions or any negligent acts of the Buyers servant or agent.

         Where the Seller manufactures or applies any processes to or uses any printed matter in connection with the Goods in accordance with the Buyers specifications, instructions or authority, the Buyer shall indemnify the Seller against all loss damages costs, claims and expenses suffered or incurred by or awarded against the Seller (including any sums paid by the Seller in settlement of proceedings or threatened proceedings) as a consequence of the Sellers compliance with the Buyers specifications instructions or authority being in breach of any law or of any rights of any nature of any third party.

         For avoidance of doubt, all printed matter – including labels – are the responsibility of the Buyer to be sure they and the product comply with the legislation of the country the product is sold in.

 

15.   LICENCE

         In the event that any Goods (as defined in clause 19 below) are repossessed in accordance with clause 19 below then the Buyer grants to the Seller an unconditional and irrevocable licence to resell the Goods as packaged including for the avoidance of doubt any name as specified (whether a registered trademark or unregistered) on whatever terms as the Seller sees fit.

 

1. INTELLECTUAL PROPERTY RIGHTS

 

i) For the purposes of this clause:

 

1. “Specification” shall mean any detailed nutritional breakdown, ingredients, flavourings, colourings and sweeteners used by the Seller to create and produce the Goods

 

1. “Formula” or “Formulae” shall be the specific mix type and source of ingredients used by the Seller to create and produce the Goods for the Buyer in accordance with a Specification.

 

1. “Intellectual Property Rights” shall mean patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in design, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protections which may now or in the future subsist in any part of the world.

 

ii) The Seller will not use any Specifications or Formula or Formulae provided by the Buyer or any Formula or Formulae developed by the Seller specifically for the Buyer for anyone else for the duration of this agreement. This does no preclude the Seller from selling straight products to anyone else (Creatine, Glutamine etc) but shall mean they will not sell the exact Formula or Formulae to another Buyer in the United Kingdom during the term of this agreement.

 

iii) The Buyer may notify the Seller of any breach by the Seller of sub clause (ii) above and the Seller will either:

 

1. cease manufacturing the product duly notified;
2. or prove to the Buyer that it is not the same product by showing a suitable qualified food auditor and the formula or formulae for the relevant products and showing the ingredients are in different proportions and/or the flavour system is different (based on a single serving). The auditors findings and decision shall be final.

 

(iv) The parties acknowledge that all Intellectual Property Rights that subsist (now or in the future) in a Specification and any Formula or Formulae provided in writing by the Buyer to the Seller shall, at all times, be and remain (as between the Buyer and the Seller) the exclusive property of the Buyer. The parties further acknowledge that all Intellectual Property Rights that subsist (now or in the future) in any Specification and any Formula or Formulae provided or developed by the Seller shall, at all times, be and remain (as between the Buyer and the Seller) the exclusive property of the Seller.

 

(v) The Buyer acknowledges, for the purposes of this Agreement and save as provided in sub-clause (iv) above, that all Intellectual Property Rights are the exclusive property of the Seller and the Buyer is only permitted use of the Seller’s Intellectual Property Rights in accordance with this Agreement.

 

1. RISK IN GOODS

         Risk in the goods shall pass to the Buyer on the earlier of delivery and the Seller notifying the Buyer that the Goods are ready for collection.

 

1. FORCE MAJEURE

         The Seller shall not be liable to comply with any terms of this Agreement if compliance therewith is delayed or prevented by any circumstances outside its control including but not limited to strikes or other industrial action, riot, war, Government orders or restrictions, orders or requests of any public national or local authority, failure of production or otherwise and in the United Kingdom or abroad of any sources of supply or means of transportation. If so, delayed or prevented to comply with this Agreement, the Seller may by written notice to the Buyer withhold, reduce or suspend deliveries and the Seller shall be under no obligation to apportion deliveries pro rata or otherwise. In any event the Seller shall not be liable in any way for the loss or damage arising directly or indirectly through or in consequence of force majeure events.

 

1. RETENTION OF TITLE

         i)     For the purposes of this clause:

                (a)    the "Goods" means the whole of the goods the subject of this contract and specified in the Order Acknowledgement

         ii)    Notwithstanding delivery the legal title and property in the Goods shall remain with the Seller and shall not pass to the Buyer until the Seller has received payment in full (including any interest accruing and owing to the Seller) in respect of the Goods and all other goods supplied by the Seller to the Buyer at any time or until the goods are sold by the Buyer to a third party in accordance with sub-clause (v) below and any payment made at any time to the Seller sufficient to discharge part only of the total amount owing to the Seller in respect of the Goods and all other goods supplied as aforesaid shall not be deemed sufficient discharge of the Buyer's obligation to make payment in full hereunder and notwithstanding such part payment the legal title and property in the Goods shall remain with the Seller.

         iii)  During such time as the property in the Goods remains in the Seller, the Buyer shall store or otherwise keep the Goods in such a way as clearly to indicate at all times that the Goods are owned by the Seller and shall not remove, obscure or delete any mark placed on the goods by the Seller which may enable the Goods to be identified. Any failure by the Seller to enforce the provisions of this sub-clause whether or not after knowledge of any breach, shall not constitute waiver thereof.

         iv)   During such time as the property in the Goods remains in the Seller the Buyer shall have power to deal with or use the Goods as bailee of the Seller in the normal course of its business and to dispose of the Goods by way of bona fida sale at full market value.

         v)    If the Buyer shall sell any of the Goods it shall hold all the proceeds of sale thereof as trustee for the Seller and shall (until payment of such proceeds to the Seller) place such proceeds in a separate bank account and hold the same to the order of the Seller. Any failure by the Seller to enforce the foregoing provisions whether or not after knowledge of any breach, shall not constitute waiver thereof.

         vi)   Upon any such sale by the Buyer of the Goods all rights which the Buyer may have against the purchaser thereof shall automatically vest in the Seller. The Buyer shall indemnify and keep indemnified the Seller in respect of any proceeding, action or claim of any nature whatsoever made or brought by the said purchaser against the Seller in respect of the Goods or any of them.

         vii) Without prejudice to any other rights or remedies arising out of any breach of contract by the Buyer, the Seller shall be entitled to repossess all or any of the Goods upon the happening of any of the events specified in sub clause (xii).

         viii) For the purposes of repossessing any of the Goods pursuant to sub clause (vii) above, the Seller or its agent shall be entitled to enter upon any land or buildings on or in which the Goods maybe situated with such transport as may be necessary and to remove any of the Goods. All costs incurred by the Seller or agent in repossessing the Goods shall be borne by the Buyer.

         ix)   Notwithstanding the foregoing the Seller may at any time elect by notice in writing to the Buyer to transfer to the Buyer the property in any of the Goods and forthwith upon such notice being given the property in the Goods the subject of the notice shall pass to the Buyer.

         x)    The rights and remedies conferred on the Seller by this Clause shall be an addition and without prejudice to any other rights and remedies which the Seller may have under these conditions or otherwise and in particular to any right to payment of all sums due or so become due in respect of the Goods.

         xi)   Nothing in this Clause shall confer on the Buyer any right to return the goods or to refuse or delay payment.

         xii) If the Buyer shall make any default in respect of or commit a breach of this Agreement or of any other of its obligations to the Seller or if any distress or execution shall be levied upon the Buyers property or assets or any part thereof, or if the Buyer shall make or offer to make any arrangement or composition with creditors, or any resolution or petition to wind up the Buyers business shall be passed or presented, or if a petition for the making of an administration order in respect of the Buyer is presented or an administration order is made or if a receiver of the Buyers undertaking property or assets or any part thereof shall be appointed the Buyer shall forthwith notify the Seller of such occurrence and not withstanding that such notice may not have been given to the Seller, the Seller shall have the right by written notice to the Buyer, to determine this and/or any other agreement then subsisting between the Buyer and the Seller and/or to suspend further deliveries of Goods under this and/or any other agreement between the Buyer and Seller. Such rights shall be without prejudice to any other claim or right the Seller may otherwise make or exercise.

 

1. NOTICES

         Any notice of process given under this Agreement shall be in writing, by telex, facsimile, post or personal delivery and shall be served at the Buyer or Sellers respective addresses set out in the Order Confirmation or such other address as either party may notify to the other. Notice of process by post shall be by first class registered mail (or airmail if the Buyer is resident outside the United Kingdom) and shall be deemed delivered seven days after posting. Proof of posting shall be sufficient proof of service.

 

21.   CROSS CLAIMS

         The Seller shall be entitled to set-off any sums owed from time to time by the Buyer to the Seller against any sums owed from time to time by the Seller to the Buyer.

 

22.   LEGAL RIGHTS

         These conditions are in addition and without prejudice to the Sellers other legal rights and remedies generally.

 

23.   WAIVER

         Any relaxation or waiver by the Seller of any of these Conditions shall act merely as a waiver on that occasion and shall affect the Sellers right to enforce all of these conditions on other occasions.

 24.   GOVERNING LAW

         The Agreement shall be construed and governed according to English Law and the parties thereto submit to the jurisdiction of the English Courts.

 25.   INFORMED SPORT

We are an Informed-Sport registered facility. This does not mean your products are Informed-Sport registered and you can only obtain this certification from Informed-Sport by getting your products audited and batch tested to their requirements. However, having them packed in an approved facility will greatly assist this process.

For avoidance of doubt, the certification does not cover the manufacturer of capsules, tablets or sachets.