Terms and Conditions of Sale
Abbott Terms and Conditions for Sale of the FreeStyle Libre System to Pharmacy Accounts
- Interpretation . It is agreed that in these Conditions the following definitions will apply:
1.1 “Abbott” means Abbott Laboratories Limited, a company registered in England and Wales, with registration number 329102 and its registered office address at Abbott House, Vanwall Business Park, Vanwall Road, Maidenhead, Berkshire, SL6 4XE.
1.2 “Business Day” means a day, other than Saturday, Sunday or a public holiday in the United Kingdom, between the hours of 9am to 5pm;
1.3 “Conditions” means these terms and conditions (as may be amended from time to time);
1.4 “Customer” means a NHS organisation and/or private clinic purchasing the Products from Abbott;
1.5 “Order” means an order for the Products placed by the Customer for the Products;
1.6 “Party” or “Parties” means Abbott and the Customer;
1.7 “Product Labelling and User Manual” means Abbott’s product labelling and user manual relating to the Products; and
1.8 “Products” means collectively the FreeStyle Libre sensors and readers.
2.1 All Orders are deemed to be made by the Customer and accepted by Abbott subject to these Conditions. These Conditions apply to all Orders for Products placed by the Customer 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, unless there is a contract in place between Abbott and the Customer for the Products, the terms of which shall take precedence over these Conditions.
2.2 The Customer is responsible for ensuring that the Customer’s requirements are accurately set out on the Order issued to Abbott.
2.3 Abbott reserves the right to accept or reject any Order placed pursuant to these Conditions. An Order shall only be deemed to be accepted when Abbott issues a written acceptance of the Order.
2.4 These Conditions constitute the entire agreement between the Parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given on behalf of Abbott which is not set out in these Conditions.
3.1 The Products are as described in the Product Labelling and User Manual. Abbott reserves the right to amend the Product Labelling and User Manual at any time and at its sole discretion.
3.2 Abbott warrants that the Products will correspond with the Product Labelling and User Manual and will be of satisfactory quality and fit for their intended purpose. Any condition, warranty or other term which might otherwise be implied or incorporated within these Conditions by reason of statute or common law or otherwise is hereby excluded to the fullest extent permitted by law.
4.1 Abbott shall deliver the Products to the location agreed between the Parties (“Delivery Location”) using Abbott’s chosen carrier. The delivery date of the Products quoted by Abbott is approximate only and the time of the delivery is not of the essence.
4.2 Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location. Each delivery of Products shall be accompanied by a packing list which shall set out the reference number of the Order and the type and quantity of the Products (“Packing List”).
4.3 Signature of the Packing List or of the delivery note issued by Abbott’s chosen carrier, in paper or electronically, by any person working or residing at the Delivery Location shall be conclusive proof of the delivery of the Products.
4.4 The cost of delivery of the Products shall be borne by Abbott unless the Customer requests a special route or method of delivery.
4.5 Abbott may deliver the Products in instalments. Each instalment will be invoiced and paid for separately, and shall constitute a separate contract between the Parties incorporating the Conditions. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.6 The Customer shall notify Abbott of any Orders of Products that have not been received by the Customer as soon as possible and in any event within five (5) working days of receipt of the invoice issued by Abbott.
4.7 The Customer shall notify Abbott of any breakages or shortages of Products within three (3) working days of the delivery of the Products.
5. Title and Risk
5.1 Risk of damage to, or loss of, the Products shall pass to the Customer on completion of delivery of the Products.
5.2 Title in the Product shall pass to the Customer on completion of Delivery of the Products.
- Price and Payment
6.1 The price of the Products shall be the price set out in Abbott’s published price list applicable at the date of Abbott’s acceptance of the Order, unless the Parties have agreed a different price in writing. All prices are subject to change without notice, unless agreed in writing by the Parties.
6.2 Abbott may invoice the Customer for the Products on or at any time after the completion of delivery. The Customer shall pay the invoice in full and in cleared funds within thirty (30) days of the date of the invoice, unless a different term is included in the invoice or agreed in writing between the Parties.
6.3 In the event of late payment, Abbott may at its sole discretion suspend the operation of the Customer’s account and suspend further supplies of the Products or the provision of support until payment is made in full for all outstanding invoices.
6.4 The price of the Products is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from Abbott, pay to Abbott such additional amounts in respect of VAT as are chargeable on the supply of the Products.
- End User Returns
7.1 FreeStyle Libre sensors are designed to be worn for a maximum of fourteen (14) days only.
7.2 Should an end user of the Product report that during the fourteen (14) day wear period a FreeStyle Libre sensor has developed a fault then Abbott may, at its sole discretion, accept the return of the FreeStyle Libre sensor from the end user (who shall have contacted the Abbott Careline directly). Where Abbott reasonably considers that the FreeStyle Libre sensor had become faulty, Abbott shall issue a replacement sensor to the end user. The decision as to whether a FreeStyle Libre sensor is faulty shall be at Abbott’s sole discretion.
7.3 The FreeStyle Libre reader is sold with a two (2) year warranty from the date of purchase by the Customer. Should the FreeStyle Libre reader develop a fault during this two (2) year period, Abbott may, at its sole discretion, accept the return of the FreeStyle Libre reader from the end user (who shall have contacted the Abbott Careline directly). Where Abbott reasonably considers that the FreeStyle Libre reader had become faulty, Abbott shall issue a replacement reader to the end user. The decision as to whether a FreeStyle Libre reader is faulty shall be at Abbott’s sole discretion.
7.4 Except as stated in this Clause 7, and subject to Clause 9 in respect of liability for death or personal injury, Abbott shall have no liability to the Customer in respect of the Products.
7.5 These Conditions apply to any repaired or replacement Products supplied by Abbott.
- Questions From End Users
The Customer may refer Product end users to the Abbott Diabetes Care Customer Careline for assistance with concerns and queries. The opening hours of the Abbott Diabetes Customer Careline are 8:00am to 8:00pm Monday to Friday. Outside these hours, a message service is available. The Abbott Diabetes Care Customer Careline can provide support and guidance on the use of the Product, however, the Customer is advised that all clinical care of end users of the Product is the sole responsibility of the Customer and Abbott accepts no liability in this regard.
- Limitation of Liability
Abbott's liability in contract, tort or otherwise for any loss or damage arising directly or indirectly either out of the supply or the use of the Products shall (except in respect of death or personal injury) be limited to the invoiced value of the Products from which the loss or damage arises. In no circumstances shall Abbott be liable for any indirect or consequential loss or damage of any nature or description no matter how arising. The Customer shall at all times keep Abbott indemnified against any claims for loss, damage, costs, expenses, injury or death to third parties arising (directly or indirectly) out of or concerned with the negligence, breach of duty of care or any other act or omission of the Customer in relation to the Products supplied hereunder.
- Customer Insolvency
If the Customer becomes insolvent, or Abbott reasonably believes that the Customer is about to become financially impaired and notifies the Customer accordingly, then, without limiting any other right or remedy available to Abbott, Abbott may cancel or suspend all further deliveries of outstanding Orders without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
- Compliance with Law
The Customer represents and warrants that it is now in compliance with, and undertakes that in performance of its obligations, it shall continue to comply with, all applicable laws and regulations, including those related to anti bribery and anti-corruption (including, but not limited to, the Bribery Act 2010 and the US Foreign Corrupt Practices Act (as amended) 1977).
- Resale Outside of EU
Due to regulatory and licensing restrictions, Products may not be resold or supplied for use or consumption to a third party outside the European Union without the prior written consent of Abbott.
- Data Protection
13.1 Abbott is fully compliant with EU legislation dealing with data protection and the transfer of personal data to third countries. Abbott may store personal data with other Abbott group companies located outside the European Union. Any such personal data transfer is subject to Abbott ensuring equivalent data protection rights to those rights existing in the European Union.
13.2 Abbott uses an integrated IT system hosted at its facility in the United States. The Customer is responsible for ensuring that all end users to which it may deliver the Product pursuant to the arrangements set out in these Conditions, have consented to the transfer of their personal data to the United States.
- Product Recall
The Customer shall use its best endeavours to cooperate with Abbott in the event of a voluntary or compulsory Product recall.
15.1 Abbott and the Customer may terminate the Engagement and/or any Conditions immediately by notice to the other Party if the other Party:
(a) commits a material breach of the Conditions which is not capable of remedy or which is capable of remedy but it fails to remedy within a reasonable period (not exceeding thirty (30) days) of receiving a notice requiring the breach to be remedied;
(b) ceases or threatens to cease to trade (in whole or part), becomes insolvent, is unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes or offers to make any composition or arrangement with its creditors; or
(c) becomes the subject of an order or resolution for dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), is the subject of any petition for winding up, or any application for an administration order or any notice of intention to appoint an administrator, or any distress or execution is levied upon its property or assets or any of its property is subject to the exercise of commercial rent arrears recovery.
- Force Majeure
Abbott shall have the right to cancel or delay performance of service or delivery of the Products if it is prevented, or hindered in production through any circumstances beyond its reasonable control including, but not limited to, war, riot government intervention, fire explosion and flood.
17. Amendments to these Conditions
Abbott may amend these terms and conditions of sale from time to time by providing the Customer with thirty (30) calendar days’ written notice of its intention to make an amendment
18. Governing Law, Severability and Waiver
These Conditions and any non-contractual dispute or claim arising out of or in connection with it shall be construed in accordance with the laws of England and any dispute arising shall be subject to the exclusive jurisdiction of the English courts. If any provision of the Conditions is held in whole or part to be unenforceable by any court or authority of competent jurisdiction, the validity of the other provisions hereof and the remainder of the provision in question shall remain in full force and effect and no waiver by Abbott of any breach by the Customer of these Conditions shall be considered as a waiver of any subsequent or ongoing breach of the same or any other provision.