The Customer's attention is particularly drawn to the
provisions of clause 8.
1.1
Definitions. In these Conditions, the following definitions
apply:
Business Day: a day
(other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges
payable by the Customer for the supply of the Services as set out in the User
Licence Request.
Commencement Date: has
the meaning set out in clause 2.2.
Conditions: these terms
and conditions as amended from time to time in accordance with clause 11.9.
Contract: the contract
between Vetprice and the Customer for the supply of Services in accordance with
these Conditions, subject to such additional terms and conditions contained on the
Website at the time of the User Licence Request or as set out in the User
Licence Request.
Customer: the person or
firm who purchases Services from Vetprice.
Intellectual Property Rights:
all patents, rights to inventions, utility models, copyright and related
rights, trade marks, service marks, trade, business and domain names, rights in
trade dress or get-up, rights in goodwill or to sue for passing off, unfair
competition rights, rights in designs, rights in computer software, database
right, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or
equivalent rights or forms of protection in any part of the world.
User Licence Request: the Customer’s request made in
person or through the Website, for the services subject to the terms of the
Contract and at the costs set out on the Website from time to time.
Services: the services supplied
by Vetprice to the Customer as set out in the User Licence Request.
Vetprice: Vetprice.com
Limited registered in England and Wales with company number 7545233.
Website: the website operated by Vetprice at
www.vetprice.com
1.2
In these Conditions, the following rules apply:
(a)
a person includes a natural person, corporate or
unincorporated body (whether or not having separate legal personality);
(b)
a reference to a party includes its personal representatives,
successors or permitted assigns;
(c)
a reference to a statute or statutory provision is a reference to
such statute or statutory provision as amended or re-enacted. A reference to a
statute or statutory provision includes any subordinate legislation made under
that statute or statutory provision, as amended or re-enacted;
(d)
any phrase introduced by the terms including, include,
in particular or any similar expression, shall be construed as
illustrative and shall not limit the sense of the words preceding those terms;
and
(e)
a reference to writing or written includes faxes
and e-mails.
2.1
User Licence Request constitutes an offer by the Customer to
purchase Services in accordance with these Conditions.
2.3
The Contract constitutes the entire agreement between the
parties. The Customer acknowledges that it has not relied on any statement,
promise or representation made or given by or on behalf of Vetprice which is
not set out in the Contract.
2.4
Any samples, drawings, descriptive matter or advertising issued
by Vetprice, and any descriptions or illustrations contained in Vetprice's
catalogues or brochures, are issued or published for the sole purpose of giving
an approximate idea of the Services described in them. They shall not form part
of the Contract or have any contractual force.
2.5
These Conditions apply to the Contract to the exclusion of any
other terms that the Customer seeks to impose or incorporate, or which are
implied by trade, custom, practice or course of dealing.
2.6
Any quotation given by Vetprice shall not constitute an offer,
and is only valid for a period of 20 Business Days from its date of issue.
3.1
Vetprice shall supply the Services to the Customer in accordance
with these Conditions.
3.2
Vetprice shall use all reasonable endeavours to provide the Services
through the Website 24 hours a day, seven days a week, but such levels of
access to the Website and the Services shall not be of the essence for
performance of the Services.
3.3
Vetprice shall have the right to make any changes to the Services
which are necessary to comply with any applicable law or safety requirement, or
which do not materially affect the nature or quality of the Services, and Vetprice
shall notify the Customer in any such event.
3.4
Vetprice warrants to the Customer that the Services will be
provided using reasonable care and skill, but are unable to give any warranty
as to the validity or accuracy of information provided as part of the Services,
although Vetprice aim to update all information and data provided on a weekly
basis.
4.1
The Customer shall:
(a)
co-operate with Vetprice in all matters relating to the Services;
(b)
provide Vetprice with such information and materials as Vetprice
may reasonably require in order to supply the Services, and ensure that such
information is accurate in all material respects;
(c)
not to permit any third party, outside of the single veterinary
practice for which the Customer has provided a wholesaler number to Vetprice, to
use the Website or Services, any login details, user name, passwords or pins
provided to the Customer by Vetprice and shall ensure that such security
information is not passed or permitted to be in the possession of any third
party;
(d)
not to permit any third party, outside of the single veterinary
practice for which the Customer has provided a wholesaler number to Vetprice to
use, hold or access any information contained in or provided to the Customer as
part of, the Services; and
(e)
warrant to Vetprice that they are contracting as, or for and on
behalf of, a single veterinary practice with a valid wholesaler number.
(a)
Vetprice shall without limiting its other rights or remedies have
the right to suspend performance of the Services until the Customer remedies
the Customer Default, and to rely on the Customer Default to relieve it from
the performance of any of its obligations to the extent the Customer Default
prevents or delays Vetprice's performance of any of its obligations;
(b)
Vetprice shall not be liable for any costs or losses sustained or
incurred by the Customer arising directly or indirectly from Vetprice's failure
or delay to perform any of its obligations as set out in this clause 4.2; and
(c)
the Customer shall reimburse Vetprice on written demand for any
costs or losses sustained or incurred by Vetprice arising directly or
indirectly from the Customer Default.
5.1
The Charges for the Services shall be as set out in the User
Licence Request.
5.2
The Customer shall pay each invoice submitted by Vetprice:
(a)
within 30 days of the date of the invoice; and
(b)
in full and in cleared funds to a bank account nominated in
writing by Vetprice, and
time for payment shall be of the essence of the
Contract.
5.3
All amounts payable by the Customer under the Contract are
exclusive of amounts in respect of value added tax chargeable for the time
being (VAT). Where any taxable supply for VAT
purposes is made under the Contract by Vetprice to the Customer, the Customer
shall, on receipt of a valid VAT invoice from Vetprice, pay to Vetprice such
additional amounts in respect of VAT as are chargeable on the supply of the
Services at the same time as payment is due for the supply of the Services.
5.4
Without limiting any other right or remedy of Vetprice, if the
Customer fails to make any payment due to Vetprice under the Contract by the
due date for payment (Due Date), Vetprice shall have
the right to charge interest on the overdue amount at the rate of four per cent
per annum above the then current Royal Bank of Scotland’s base rate accruing on
a daily basis from the Due Date until the date of actual payment of the overdue
amount, whether before or after judgment, and compounding quarterly.
5.5
The Customer shall pay all amounts due under the Contract in full
without any deduction or withholding except as required by law and the Customer
shall not be entitled to assert any credit, set-off or counterclaim against Vetprice
in order to justify withholding payment of any such amount in whole or in part.
Vetprice may, without limiting its other rights or remedies, set off any amount
owing to it by the Customer against any amount payable by Vetprice to the
Customer.
6.1
All Intellectual Property Rights in or arising out of or in
connection with the Services or the Website shall be owned by Vetprice.
6.2
The Customer acknowledges that, in respect of any third party
Intellectual Property Rights, the Customer's use of any such Intellectual
Property Rights is conditional on Vetprice obtaining a written licence from the
relevant licensor on such terms as will entitle Vetprice to license such rights
to the Customer.
A party (Receiving Party)
shall keep in strict confidence all technical or commercial know-how,
specifications, inventions, processes or initiatives which are of a
confidential nature and have been disclosed to the Receiving Party by the other
party (Disclosing Party), its employees, agents or
subcontractors, and any other confidential information concerning the
Disclosing Party's business or its products or its services which the Receiving
Party may obtain. The Receiving Party shall restrict disclosure of such
confidential information to such of its employees, agents or subcontractors as
need to know it for the purpose of discharging the Receiving Party's
obligations under the Contract, and shall ensure that such employees, agents or
subcontractors are subject to obligations of confidentiality corresponding to
those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8.
Limitation of
liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
(a)
death or personal injury caused by its negligence, or the
negligence of its employees, agents or subcontractors;
(b)
fraud or fraudulent misrepresentation; or
(c)
breach of the terms implied by section 2 of the Supply of Goods
and Services Act 1982 (title and quiet possession).
8.2
Subject to clause 8.1:
(a)
Vetprice shall not be liable to the Customer, whether in
contract, tort (including negligence), breach of statutory duty, or otherwise,
for any loss of profit, or any indirect or consequential loss arising under or
in connection with the Contract; and
(b)
Vetprice's total liability to the Customer in respect of all
other losses arising under or in connection with the Contract, whether in
contract, tort (including negligence), breach of statutory duty, or otherwise,
shall not exceed [the total Charges received by Vetprice from under the Contract].
8.3
Except as set out in these Conditions, all warranties, conditions
and other terms implied by statute or common law are, to the fullest extent
permitted by law, excluded from the Contract.
8.4
This clause 8 shall survive termination of the Contract.
9.1
Without limiting its other rights or remedies, each party may
terminate the Contract with immediate effect by giving written notice to the
other party if:
(a)
the other party commits a material breach of the Contract and (if
such a breach is remediable) fails to remedy that breach within 7 days of that
party being notified in writing of the breach;
(c)
the other party commences negotiations with all or any class of
its creditors with a view to rescheduling any of its debts, or makes a proposal
for or enters into any compromise or arrangement with its creditors other than
(where a company) for the sole purpose of a scheme for a solvent amalgamation
of that other party with one or more other companies or the solvent reconstruction
of that other party;
(d)
a petition is filed, a notice is given, a resolution is passed,
or an order is made, for or in connection with the winding up of that other
party (being a company) other than for the sole purpose of a scheme for a
solvent amalgamation of that other party with one or more other companies or
the solvent reconstruction of that other party;
(e)
the other party (being an individual) is the subject of a
bankruptcy petition or order;
(f)
a creditor or encumbrancer of the other party attaches or takes
possession of, or a distress, execution, sequestration or other such process is
levied or enforced on or sued against, the whole or any part of its assets and
such attachment or process is not discharged within 14 days;
(g)
an application is made to court, or an order is made, for the
appointment of an administrator or if a notice of intention to appoint an
administrator is given or if an administrator is appointed over the other party
(being a company);
(h)
a floating charge holder over the assets of that other party
(being a company) has become entitled to appoint or has appointed an
administrative receiver;
(j)
any event occurs or proceeding is taken with respect to the other
party in any jurisdiction to which it is subject that has an effect equivalent
or similar to any of the events mentioned in clause 9.1(b) to clause 9.1(i) (inclusive); or
(k)
the other party suspends or ceases, or threatens to suspend or
cease, to carry on all or a substantial part of its business.
9.2
Without limiting its other rights or remedies, Vetprice may
terminate the Contract with immediate effect by giving written notice to the
Customer if the Customer fails to pay any amount due under this Contract on the
due date for payment.
9.3
The duration of the Contract shall be as set out in the User
Licence Request and in any event shall only be capable of termination by the
Customer giving not less than three months written notice to Vetprice.
9.4
Without limiting its other rights or remedies, Vetprice shall
have the right to suspend provision of the Services under the Contract or any
other contract between the Customer and Vetprice if the Customer becomes
subject to any of the events listed in clause 9.1(b), or Vetprice 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 this Contract on the due date for
payment.
On termination of the Contract for any reason:
(a)
the Customer shall immediately pay to Vetprice all of Vetprice's
outstanding unpaid invoices and interest and, in respect of Services supplied
but for which no invoice has been submitted, Vetprice shall submit an invoice,
which shall be payable by the Customer immediately on receipt;
(b)
the accrued rights, remedies, obligations and liabilities of the
parties as at expiry or termination shall not be affected, including the right
to claim damages in respect of any breach of the Contract which existed at or
before the date of termination or expiry; and
(c)
clauses which expressly or by implication have effect after
termination shall continue in full force and effect.
11.1
Force majeure:
(a)
For the purposes of this Contract, Force
Majeure Event means an event beyond the reasonable control of Vetprice
including but not limited to strikes, lock-outs or other industrial disputes
(whether involving the workforce of Vetprice or any other party), failure of a
utility service or transport network, act of God, war, riot, civil commotion,
malicious damage, compliance with any law or governmental order, rule,
regulation or direction, accident, breakdown of plant or machinery, fire,
flood, storm or default of Vetprices or subcontractors.
(b)
Vetprice shall not be liable to the Customer as a result of any
delay or failure to perform its obligations under this Contract as a result of
a Force Majeure Event.
(c)
If the Force Majeure Event prevents Vetprice from providing any
of the Services for more than 8 weeks, Vetprice shall, without limiting its
other rights or remedies, have the right to terminate this Contract immediately
by giving written notice to the Customer.
11.2
Assignment and subcontracting:
(a)
Vetprice may at any time assign, transfer, charge, subcontract or
deal in any other manner with all or any of its rights under the Contract and
may subcontract or delegate in any manner any or all of its obligations under
the Contract to any third party or agent.
(b)
The Customer shall not, without the prior written consent of Vetprice,
assign, transfer, charge, subcontract or deal in any other manner with all or
any of its rights or obligations under the Contract.
(a)
Any notice or other communication required to be given to a party
under or in connection with this Contract shall be in writing and shall be
delivered to the other party personally or sent by prepaid first-class post,
recorded delivery or by commercial courier, at its registered office (if a
company) or (in any other case) its principal place of business, or sent by fax
to the other party's main fax number.
(b)
Any notice or other communication shall be deemed to have been
duly received if delivered personally, when left at the address referred to
above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am
on the second Business Day after posting, or if delivered by commercial
courier, on the date and at the time that the courier's delivery receipt is
signed, or if sent by fax, on the next Business Day after transmission.
(c)
This clause 11.3 shall not apply to the service of any
proceedings or other documents in any legal action. For the purposes of this
clause, "writing" shall not include e-mails and for the avoidance of
doubt notice given under this Contract shall not be validly served if sent by
e-mail.
11.4
Waiver:
(a)
A waiver of any right under the Contract is only effective if it
is in writing and shall not be deemed to be a waiver of any subsequent breach
or default. No failure or delay by a party in exercising any right or remedy
under the Contract or by law shall constitute a waiver of that or any other
right or remedy, nor preclude or restrict its further exercise. No single or
partial exercise of such right or remedy shall preclude or restrict the further
exercise of that or any other right or remedy.
(b)
Unless specifically provided otherwise, rights arising under the
Contract are cumulative and do not exclude rights provided by law.
11.5
Severance:
(a)
If a court or any other competent authority finds that any
provision of the Contract (or part of any provision) is invalid, illegal or
unenforceable, that provision or part-provision shall, to the extent required,
be deemed deleted, and the validity and enforceability of the other provisions
of the Contract shall not be affected.
(b)
If any invalid, unenforceable or illegal provision of the
Contract would be valid, enforceable and legal if some part of it were deleted,
the provision shall apply with the minimum modification necessary to make it
legal, valid and enforceable.
11.6
Entire Agreement:
The Contract constitutes the entire agreement
between Vetprice and the Customer in respect of the Services and the Contract
supercedes all prior negotiations between Vetprice and the Customer and all
representatives and undertakings made by the Customer or Vetprice, whether oral
or written, except that this clause shall not exclude liability in respect of
any fraud or fraudulent misrepresentation. In the event of, and only to the
extent of, any conflict between the terms of the Contract, the conflict shall
be resolved in accordance with the following order of procedure:
(a)
the contents of the User Licence Request;
(b)
any terms (other than those Conditions) on the Website; and
(c)
these Conditions
11.7
No partnership: Nothing in the Contract is intended to, or shall
be deemed to, constitute a partnership or joint venture of any kind between any
of the parties, nor constitute any party the agent of another party for any
purpose. No party shall have authority to act as agent for, or to bind, the
other party in any way.
11.8
Third parties: A person who is not a party to the Contract shall
not have any rights under or in connection with it.
11.10
Governing law and jurisdiction: 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, and the parties irrevocably submit
to the exclusive jurisdiction of the courts of England and Wales.
