1. Definition and Interpretation

“Appliances” – Means any applicable item listed in Part IX of the prevailing Drug Tariff at the time of supply;

“Business Day” – Means any day other than a Saturday or Sunday or a public or bank holiday in England;

“BSAPS” – Means the Business Services Authority Prescription Services;

“the Company” – Means NuCare Limited, a company registered in England and Wales under 02821239 whose registered office is at Whitehouse Industrial Estate, Rivington Road, Preston Brook, Runcorn, Cheshire WA7 3DJ;

“Contract” – Means a Contract between the Company and the Healthcare Partner for the transfer of possession of the Appliances to the Patient;

“Distributor” – Means PHOENIX Healthcare Distribution Limited or other logistics provider as may be used from time to time by the Company;

“Drug Tariff” – Means the current monthly tariff compiled by the NHS Business Services Authority Prescription Services acting on behalf of the Department of Health;

“Fees” – Means any fees agreed between the Company and the Healthcare Partner in writing in respect of the receiving and delivering of any Appliance to a Patient;

“Healthcare Partner” – Means the body, company, organisation, partnership or individual who is supplied with the Appliances by the Company to transfer possession to the Patient;

“Normal Business Hours” – Means Monday to Friday between 09.00 hrs and 18.00 hrs excluding public holidays;

“Order” – Means an Order for Appliances placed by the Healthcare Partner with the Company or its authorised representatives;

“Patient” – Means a person receiving medical treatment;

“Prescription” – Means an instruction written by an appropriate medical practitioner, conforming to all current legislation, authorising a Patient to be provided medical treatment.


2. Basis of Contract

2.1 These terms and conditions apply to all Orders.

2.2 The Healthcare Partner agrees to receive Prescriptions on the Company's behalf.

2.3 The Healthcare Partner agrees to make the Patient aware that the Company is dispensing the Patient’s Prescription. The Healthcare Partner agrees to clearly display the Company’s notice card in the Healthcare Partner's premises in order to be visible to the Patient.

2.4 The Healthcare Partner agrees to offer free home delivery of qualifying Appliances.

2.5 These terms and conditions may only be amended by an officer of the Company; no employee, representative, agent or salesperson has the Company's authority to vary, amend or waive any of these terms and conditions on behalf of the Company.


3. Orders

3.1 Orders shall be given either by (i) faxing the prescription to the Company email inbox on 0800 028 3631 with an accompanying Company Safe Haven Fax Cover Sheet or (ii) calling the Company Customer Services on 0800 028 3709.

3.2 An Order shall constitute an offer which shall be deemed to have been accepted by the Company and a Contract formed at the point of despatch of the Appliances to the Healthcare Partner by the Company.

3.3 Before placing an Order, the Healthcare Partner agrees to identify and rectify any issues resulting from incorrect prescribing.

3.4 Each Order must be supported by:

(i) the Healthcare Partner’s representation that a vaild, unstamped and unendorsed Prescription (whether exempt or non-exempt) signed by the Patient (or its agent or representative) in respect of which all relevant fees have been paid will be forwarded to the Company in accordance with clause 5.4;

(ii) where provided on the Prescription, the Patient's NHS number and/or name and the Patient's date of birth.

3.5 The Company shall assign a unique identifying number to each Order it accepts and notify such number to the Healthcare Partner. The Healthcare Partner agrees to write the unique identifying number provided by the Company on top of the Prescription.

3.6 Notwithstanding that a Contract may not have been formed, the Healthcare Partner acknowledges that the Company may incur costs and expenses in the course of processing an Order. As such, if an Order, having been placed, is cancelled at any time the Healthcare Partner hereby agrees to indemnify the Company in full for any and all losses, costs, damages, charges, expenses and/or lost profits that the Company may suffer as a result of such cancellation.

3.7 The Company may, at its discretion, accept or decline Orders.

3.8 The Company agrees to send out the Order in lieu of receiving the Prescription.

3.9 The Company agrees to provide free bags and wipes with Appliances as outlined in the Drug Tariff.

3.10 Fees are those listed in the prevailing Drug Tariff and subject to change without notice.


4. Retention of Title

4.1 Appliances that are supplied by the Company to the Healthcare Partner shall remain at all times the property of the Company until title is passed to the Patient.

4.2 Title to the Appliances shall pass to the Patient on delivery to the Patient.

4.3 Until ownership of the Appliances passes to the Patient, the Healthcare Partner must:

(i) keep the Appliances on a fiduciary basis as the Company’s Bailee;

(ii) keep all Appliances in such manner and with such markings as to enable such stock to be immediately identifiable;

(iii) keep the Appliances free from any charge, lien or encumbrance;

(iv) not to destroy, deface or obscure any identifying mark or packaging on or relating to the Appliances;

(v) to maintain the Appliances in satisfactory condition and observe all directions for storage of the Appliances given by the Company or the manufacturer.

4.4 The Healthcare Partner’s right to hold the Appliances on a fiduciary basis shall terminate immediately upon any one of the events listed in clause 12.2 occurring.

4.5 The Healthcare Partner shall immediately notify the Company on the occurrence of any event(s) referred to in clause 4.4 and listed in clause 12.2 and the Healthcare Partner hereby grants an irrevocable licence to the Company and/or its agents to enter the Healthcare Partner’s premises immediately upon it becoming aware of any of the occurrences referred to in clause 4.4 above for the purpose of taking possession of Appliances constituting the Company’s property.


5. Acceptance & Delivery

5.1 The Company will use all reasonable endeavours to deliver the Appliances on a next Business Day basis from receipt of an accepted Order where the Order is received before 4pm as may be amended from time to time by the Company.

5.2 It is the Healthcare Partner’s responsibility to report any discrepancies in the Order to the Company within 24 hours of receiving the Order.

5.3 The Healthcare Partner agrees to forward the Prescription to the Company within 5 Business Days.

5.4 The Company may supply the Healthcare Partner with pre-paid envelopes in order to assist with the process outlined in clause 5.3. Failure to supply pre-paid envelopes does not release the Healthcare Partner from its obligations under this Contract and in particular, its obligations under clause 5.3.

5.5 If the Company does not receive the Prescription within 5 Business Days, then the Company reserves the right to charge the Healthcare Partner the Drug Tariff price of the corresponding Order and the Healthcare Partner shall pay within 30 days of receipt of an invoice. If there is a dispute as to whether a Prescription was sent by the Healthcare Partner and the Healthcare Partner cannot show that it was sent by recorded delivery to the Company, the Healthcare Partner will be charged the Drug Tariff price of that Appliance.

5.6 The Company will endeavour to use the Distributor to deliver the Appliances to the Healthcare Partner but reserves the right to use another logistics service provider.

5.7 Unless expressly agreed by the Company, delivery of each Order placed will be made to the Healthcare Partner’s normal place of business (as communicated to the Company by the Healthcare Partner) during Normal Business Hours.

5.8 Any dates and/or times specified for delivery are intended to be an estimate only and time shall not be deemed to be of the essence.

5.9 The Company reserves the right to deliver all or any part of the Appliances in instalments at its discretion.

5.10 On delivery of the Appliances to the Healthcare Partner, the Appliances shall be held at the Healthcare Partner’s sole risk and the Healthcare Partner warrants that they will insure such Appliances to their full market value against all risks of loss or damage to the Appliances.

5.11 The Healthcare Partner agrees to provide adequate and safe access to the Healthcare Partner’s property whilst the Company’s employees are visiting the Healthcare Partner’s property and the Healthcare Partner warrants that they have fully complied and will continue to fully comply with any and all statutory obligations that they have towards all such visitors.

5.12 If the Healthcare Partner for any reason fails or is unable to accept delivery of Appliances in accordance with these terms and conditions, the Appliances will have deemed to have been delivered (with the risk in them passing to the Healthcare Partner) and the Company may invoice the Healthcare Partner and the Company may:

(i) store the Appliances at the Healthcare Partner’s risk and cost and redeliver at the next reasonable opportunity; and/or

(ii) after a reasonable period cancel the Order.

5.13 The signature on the delivery note or electronic hand held device by any person at the delivery address will be evidence that the Healthcare Partner has accepted the delivery of the Appliances.

5.14 Any shortages, errors in, damage to or non-delivery of any Order must be notified to the Company within 24 hours of the date of delivery.

5.15 The Healthcare Partner agrees to promptly return all tote boxes and other returnable containers to the Distributor. If these are retained by the Healthcare Partner for longer than ten calendar days after the date of delivery, the Healthcare Partner shall be liable to be charged for the replacement cost of such containers.


6. Returns

6.1 Under normal circumstances the Company does not accept the return of any Appliances that are returned by the Healthcare Partner for credit.

6.2 The Company will accept the return of any Appliances which are defective and where it is notified of such defect within 3 Business Days of delivery to the Healthcare Partner. In such circumstances the obligation on the Company shall be to replace the defective Appliance. The Company shall not be liable to replace any such Appliance where the defect arises due to the Healthcare Partner or Patient’s failure to follow written instructions as to the storage or use of the Appliance.

6.3 The Healthcare Partner fully accepts that any Appliances specially manufactured or ordered in error by the Healthcare Partner are unable to be returned to the Company under any circumstances.


7. Liability

7.1 The Company is not liable to the Healthcare Partner for:

(i) non-delivery;

(ii) shortages in or excesses of quantity delivered;

(iii) damage to or loss of the Appliances or any part of them in transit (where the Appliances are carried by the Distributor’s own transport or by another logistics service provider on behalf of the Company);

(iv) defects in the Appliances caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or any act, neglect or default of the Healthcare Partner or of any third party; or

(v) other defects in the Appliances; unless notified to the Company in accordance with the provisions of Condition 6.2.

7.2 If liability is accepted by the Company under Condition 7.1 the Company’s only obligation is its option:

(i) to make good any shortage or non-delivery;

(ii) to replace any Appliances found to be damaged or defective.

7.3 The Company is not liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by any alterations to the Appliances (including alterations to the packaging contrary to the Company’s or the manufacturer’s instructions) carried out without the Company’s prior written approval.

7.4 The Company’s aggregate liability to the Healthcare Partner under a Contract whether for negligence, breach of contract, breach of statutory duty, misrepresentation, restitution or otherwise shall in no circumstance exceed the cost of the defective, damaged or undelivered Appliances which give rise to such liability as determined by the net price invoiced to the Healthcare Partner in respect of any occurrence or series of occurrences.

7.5 All conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Appliances (save for the conditions implied by Section 12 of the Sale of Appliances Act 1979) are excluded from each Contract to the fullest extent permitted by law.

7.6 Nothing in these terms and conditions excludes or limits the Company’s liability:

(i) for death or personal injury caused by the Company’s negligence;

(ii) under Section 2(3) of the Consumer Protection Act 1987;

(iii) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability;

(iv) for fraud or fraudulent misrepresentation.

7.7 The Company is not liable for any direct, indirect special or consequential liabilities, losses, charges, damages, costs and expenses suffered by the Healthcare Partner howsoever caused and including, without limitation, pure economic loss, loss of anticipated profits, goodwill, revenue, reputation, anticipated savings, management time, business receipts or contracts or losses or expenses resulting from third party claims.

7.8 The Company is not liable to the Healthcare Partner for:

(i) any delivered Appliances inaccuracies resulting from an incorrect Order being placed due to misinterpretation by the Healthcare Partner of a Prescription;

(ii) any comment made or advice given to the Patient.


8. Indemnity

8.1 The Healthcare Partner undertakes to indemnify the Company against any loss, damage, costs and expenses arising from any comment made to, or counselling given to, the Patient by the Healthcare Partner.


9. Payment

9.1 The Company will pay agreed Fees under this Contract into the Healthcare Partner’s account, on a monthly basis, by the end of the month following the month in which reimbursement is received for the corresponding Prescription, subject to a deduction for any Prescription levies paid to the Healthcare Partner by the Patient for non-exempt Prescriptions.

9.2 Any Prescriptions returned from the BSAPS due to incorrect Prescription particulars will be returned to the Healthcare Partner to arrange for correction and will be subject to a handling charge of £2.00. Under these circumstances no Fees will be paid by the Company to the Healthcare Partner until a valid Prescription has been received by the Company and processed by the BSAPS as a valid Prescription. The Company will then pay all relevant Fees in line with clause 9.1.


10. Product Recalls

10.1 The Healthcare Partner agrees to provide the Company with all necessary assistance in the event of a product recall.


11. Force Majeure

11.1 Should the Company be prevented from performing any of its obligations under these terms and conditions for any reason whatsoever that is beyond its reasonable control ("an Event of Force Majeure"), it shall be under no obligation or liability to the Healthcare Partner in respect of any such non-performance and it shall be entitled at its option, to amend, delay or terminate any Order affected by such Event of Force Majeure.


12. Termination

12.1 On, or at any time after, the occurrence of any of the events in clause 12.2, the Company may:

(i) stop and/or recall any Appliances in transit;

(ii) suspend further deliveries to the Healthcare Partner;

(iii) exercise its rights under clause 4; and/or

(iv) terminate any Contract with the Healthcare Partner with immediate effect by written notice to the Healthcare Partner.

12.2 The events are:

(i) the Healthcare Partner being in breach of any obligation under a Contract with the Company;

(ii) the Healthcare Partner passing a resolution for its winding up or a court of competent jurisdiction making an order for the Healthcare Partner’s winding up or dissolution;

(iii) the making of an administrative order in relation to the Healthcare Partner or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of the Healthcare Partner; or

(iv) the Healthcare Partner making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally;

(v) If any payment is overdue by 10 calendar days after the date that payment is due to the Company.

12.3 Upon termination of a Contract pursuant to this clause 12, any indebtedness of the Healthcare Partner to the Company becomes immediately due and payable and the Company is relieved of any further obligation to supply Appliances to the Healthcare Partner pursuant to any Contract.


13. General

13.1 Any intellectual property rights created or developed by the Company in the course of the performance of any Contract shall remain the sole property of the Company and nothing in these terms and conditions shall be deemed or interpreted to give the Healthcare Partner a licence or any other right to use any of the intellectual property rights of the Company.

13.2 Any rights and remedies of the Company arising under any Contract shall not be diminished waived or extinguished by any indulgence forbearance extension of a time for any period by the Company nor by any failure or delay by the Company in exercising any such rights or remedies.

13.3 The Healthcare Partner shall not be entitled to assign, charge, subcontract or transfer any Contract or any part of any Contract without the prior written consent of the Company. The Company may assign, charge, subcontract any Contract or any part of any Contract at its sole discretion.

13.4 The information that is provided by the Healthcare Partner will be used by the Company for the purpose of managing the Healthcare Partner’s account. The Healthcare Partner consents to all such information and all ordering data being used by the Company and consents to allow such information being passed onto third parties.


14. Law & Jurisdiction

14.1 If any clause or part of these terms and conditions is held to be invalid or unenforceable whether wholly or partially for any reason, such clause or part of these terms and conditions shall be deemed severable to the extent that such invalidity requires it and the other conditions shall not be affected.

14.2 The waiver by either party of any breach of a Contract shall not prevent the subsequent enforcement of that breach. No waiver of these terms and conditions shall be effective unless written and signed and agreed by both parties.

14.3 The construction validity and performance of these terms and conditions shall be governed by English law and subject to the exclusive jurisdiction of the English courts.

14.4 No person who is not a party to any Contract or these terms and conditions is entitled to enforce any of its terms whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.


15. Relationship Between the Parties

15.1 Nothing in these terms and conditions is intended to or shall operate to create a partnership or joint venture of any kind between the parties, and save where the items of these terms and conditions provide to authorise either party to act as agent for the other, no party shall have authority to act in the name of, on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).


16. Healthcare Partner’s Warranties

16.1 The Healthcare Partner warrants and represents to the Company that it is a registered pharmacy or doctor’s practice with power to enter into this agreement.