Conditions of Sale
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1. About these Conditions
1.1 These Conditions of Sale (the "Conditions") apply to every sale of products by CAPSULES DIRECT LTD, a company registered in England and Wales under company number 17362490, with its registered office at Rowood House, 26 Murdock Road, Bicester, Oxfordshire, OX26 4PP, United Kingdom ("Capsules", "we", "us", "our"). Capsules.com is a trading name of CAPSULES DIRECT LTD. Customers in the United States are supplied by CAPSULES DIRECT LTD. There is currently no separate US operating company. If that changes, we will update these Conditions and identify the new contracting entity.
1.2 We supply empty two-piece HPMC and gelatin capsules and related products to trade customers for use as packaging and excipient materials in their own manufacturing.
1.3 We sell only to businesses. By placing an order you confirm that you are acting in the course of a business and not as a consumer. Consumer protection laws that apply to consumer purchases do not apply to any sale under these Conditions.
1.4 These Conditions apply to the exclusion of any terms you seek to impose or incorporate, including terms on or referred to in your purchase order, specification or other documents, and any terms implied by trade, custom or course of dealing.
1.5 Where you and we have signed a written supply agreement (including a supply and equipment funding agreement), that agreement prevails over these Conditions to the extent of any conflict. Otherwise these Conditions prevail over our Terms of Service in relation to the supply of products.
2. Definitions
In these Conditions:
Business Day means a day other than a Saturday, Sunday or public holiday in England.
CoA means the certificate of analysis issued for a Lot.
Contract means the contract for the sale of products formed under clause 3.
Custom Products means capsules made to a specification, color, print, artwork or finish requested by or approved for you, including products designed using the Capsule Designer.
Lot means a batch of products identified by a single lot or batch number.
Order Acknowledgment means our written acceptance of your order.
Specification means our published specification for a stock product, or for Custom Products the specification approved under clause 4.
Special Procurement Order means an order for stock products that we identify in the Order Acknowledgment as requiring stock to be procured or moved specifically to fulfill it.
A reference to writing includes email and documents sent through the customer portal. Headings do not affect interpretation.
3. Orders and formation of the Contract
3.1 Orders are placed through the customer portal or by written purchase order from an approved trade account.
3.2 A quotation is an invitation to order and remains valid for 14 days from its date unless it states otherwise. We may withdraw or amend a quotation at any time before we issue an Order Acknowledgment.
3.3 Your order is an offer to buy. A Contract is formed only when we issue an Order Acknowledgment or dispatch the products, whichever is earlier. The Contract comprises the Order Acknowledgment and these Conditions.
3.4 The minimum order is one box of any product. Volume pricing is set out in our price list in force when we accept the order and is earned on the quantity of each product on the order.
3.5 You are responsible for the accuracy of your order, including product codes, sizes, quantities and delivery details.
3.6 We may correct any typographical, clerical or pricing error in a quotation, Order Acknowledgment or invoice. If a correction increases the price, you may cancel the affected order without charge within 2 Business Days of being notified.
4. Custom Products
4.1 Custom Products are made to your requirements. Before we place an order for Custom Products with a manufacturer, you must approve in writing, by electronic signature, the specification, color references, artwork, the manufacturer's proof and any pre-production sample we provide.
4.2 Custom Products go into production on your final approval. Once approved, an order for Custom Products cannot be canceled, and Custom Products cannot be returned or refunded, except under clause 13 where they fail to conform to the approved specification.
4.3 We may require a deposit, or payment in full, before production of Custom Products begins. Deposits are non-refundable once production begins.
4.4 You warrant that any artwork, name, mark, color standard or design you provide or approve does not infringe the rights of any third party and is lawful for use in every territory in which you will sell your finished products. You grant us a license to use it for the purpose of fulfilling your orders.
4.5 Manufacturing quantities of Custom Products may vary by up to 10% above or below the ordered quantity. We will invoice the quantity delivered, and delivery within that range satisfies the order.
4.6 Approved proofs, specifications and reference samples are retained in our quality records for as long as we supply the Custom Product and for the retention period after.
5. Sample boxes
A sample box is a sale of one box of a stock product under these Conditions, at the price stated in the quotation. Any credit offered against a later order is stated in the quotation and applies on the terms stated there.
6. Prices
6.1 The price of the products is the price in the Order Acknowledgment. Prices are quoted ex works our warehouse and are exclusive of:
(a) delivery, carriage, freight and any insurance, which are charged separately;
(b) sales, use, VAT and any similar taxes. Where you claim an exemption from sales or use tax, including for resale or manufacturing, you must give us a valid exemption certificate before we invoice. Without one, you will pay any such tax that applies, and you will reimburse us for any such tax, interest or penalty later assessed on a sale to you.
(c) customs duties, tariffs, import taxes, brokerage and clearance charges, which are dealt with under clause 10.
6.2 Prices in our price list and quotations follow our landed cost and may change without notice. Once we issue an Order Acknowledgment the price of the products in it is fixed, except for any change in quantity, specification, delivery date or delivery address that you request and we accept.
7. Currency
7.1 We invoice in the currency stated in the Order Acknowledgment. Unless agreed otherwise, orders on our US site are quoted and invoiced in US dollars.
7.2 On request we will quote and invoice any order in US dollars.
7.3 If you pay in a currency other than the invoice currency, the payment is converted at the rate our bank applies on the day of receipt. The invoice is settled only when the full invoice amount in the invoice currency has been received. Any shortfall from conversion or bank charges remains payable.
8. Payment
8.1 Orders from new accounts are paid in advance, by card through our payment provider's hosted payment page or by bank transfer against a pro forma invoice. We dispatch on receipt of cleared funds.
8.2 We may offer credit terms to an account following a credit review. Credit terms, including the credit limit and the number of days from invoice, are those we confirm to you in writing. We may reduce or withdraw credit terms at any time, including while any amount is overdue or following a change in your financial position.
8.3 Payment is due in full, in cleared funds, by the due date on the invoice. Time for payment is of the essence.
8.4 You must pay all amounts without set-off, counterclaim, deduction or withholding, except as required by law. We may set off any amount you owe us against any amount we owe you.
8.5 If you do not pay any amount by its due date, we may:
(a) charge interest on the overdue amount from the due date until payment, at 8% a year above the Bank of England base rate from time to time, accruing daily, together with our reasonable costs of collection, including attorneys' fees;
(b) suspend or cancel any undelivered order;
(c) require payment in advance for future orders; and
(d) suspend your access to ordering through the customer portal.
8.6 We do not collect, process or store your full payment card details. Card payments are processed by our payment provider.
9. Delivery
9.1 We may dispatch the products from any warehouse we choose. The Order Acknowledgment states the dispatch point and the delivery term.
9.2 Delivery terms are interpreted under Incoterms 2020. Unless the Order Acknowledgment states otherwise:
(a) where we arrange carriage to an address in the same country as the dispatching warehouse, delivery is DAP at the delivery address;
(b) where we arrange carriage to an address in another country, delivery is CPT at the named destination, and we will arrange cargo insurance (CIP) at your cost if you ask in writing before dispatch; and
(c) where you or your carrier or freight forwarder collect, delivery is FCA our warehouse.
9.3 Delivery dates are estimates. Time for delivery is not of the essence. We are not liable for any delay in delivery, but if we do not deliver within 30 days after the estimated date for a reason within our control, you may cancel the undelivered part of the order by written notice and we will refund any amount you have paid for it.
9.4 We may deliver an order in installments and invoice each installment separately. A delay in or defect with one installment does not entitle you to cancel any other installment.
9.5 If you do not take or collect delivery when the products are ready, or do not give us adequate delivery instructions, delivery is treated as completed at that time. We may store the products at your risk and charge you reasonable storage, handling and insurance costs, and after 30 days we may resell them and charge you any shortfall against the price plus our costs.
9.6 You must make sure that someone is available to receive the delivery and that the delivery address can accept palletized goods, unless you have told us otherwise before we accept the order.
10. International shipments
10.1 For any shipment that crosses an international border, you are the importer of record. You are responsible for import clearance, and you pay all customs duties, tariffs, import VAT and taxes, brokerage, clearance and similar charges, whenever they arise. If we pay any of them on your behalf, you will reimburse us on demand. For shipments into the United States, this includes all duties and tariffs assessed by US Customs and Border Protection, including any additional tariffs in force at the time of entry.
10.2 You will give us, before dispatch, any customs, tax or regulatory information we reasonably request, including your importer and tax registration numbers. You are responsible for any delay, storage or charge caused by missing or inaccurate information you provide.
10.3 You are responsible for making sure that the products may lawfully be imported into, and used in, the destination country, and for any license, registration or notification required there.
10.4 You will comply with all applicable sanctions and export control laws and will not supply the products, directly or indirectly, to any person or destination in breach of them.
11. Risk
Risk in the products passes to you on delivery under the applicable delivery term in clause 9.2, or at the time delivery is treated as completed under clause 9.5.
12. Title
12.1 Title to the products does not pass to you until we have received payment in full, in cleared funds, for the products and for all other amounts that are due from you to us on any account.
12.2 Until title passes, you will:
(a) hold the products as our bailee;
(b) store them separately from other goods, properly stored and protected, and identifiable as our property by Lot;
(c) not remove or obscure any identifying mark or packaging; and
(d) keep them insured against all risks for their full price.
12.3 You may use the products in the ordinary course of your business before title passes. That right ends immediately if any event in clause 22.1 occurs.
12.4 If title has not passed and any event in clause 22.1 occurs, or any amount is overdue, we may require you to deliver up the products, and we and our agents may enter any premises where they are stored to recover them.
12.5 To secure payment of all amounts you owe us, you grant us a security interest in the products and their proceeds. You authorize us to file financing statements, and to take any other step reasonably required, to perfect and protect that security interest under the Uniform Commercial Code or any other applicable law.
13. Inspection, shortages and claims
13.1 You must inspect each delivery on receipt.
13.2 Shortages, wrong products and visible damage to packaging or products must be recorded on the carrier's delivery note and reported to us in writing within 3 Business Days of delivery, with photographs where damage is visible.
13.3 Any other failure of the products to conform to the Specification or the CoA must be reported to quality@capsules.com within 30 days of delivery and before the products in the affected Lot are filled or otherwise used, with the product, Lot number, quantity affected and a description of the non-conformity.
13.4 Following a report, you must:
(a) stop using the affected Lot;
(b) keep the affected products, their packaging and labels, and your retained samples, quarantined and stored in accordance with the Specification; and
(c) give us and our manufacturer access to them, and to your relevant incoming inspection and storage records, for inspection and testing.
13.5 We will investigate each report under our quality procedures and tell you our conclusion in writing. Any claim not reported within the periods in this clause is excluded, and the products are treated as accepted.
14. Warranty
14.1 We warrant that at the time of delivery the products conform to the Specification and to the CoA for their Lot.
14.2 The warranty does not apply to any non-conformity caused by:
(a) storage, handling, transport after risk has passed, or use, other than in accordance with the Specification;
(b) the filling equipment, processes, fill materials or environmental conditions you use;
(c) any specification, artwork or design you provided or approved; or
(d) fair wear, or use after the shelf-life date.
14.3 If products are shown to be in breach of clause 14.1 and you have complied with clause 13, we will at our option replace them, or credit or refund the price paid for them. We will pay the carriage costs of returning non-conforming products and delivering replacements. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY FOR NON-CONFORMING PRODUCTS.
14.4 THE WARRANTY IN CLAUSE 14.1 IS GIVEN IN PLACE OF ALL OTHER WARRANTIES, CONDITIONS AND TERMS, EXPRESS OR IMPLIED. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW.
14.5 Technical data, guidance, application advice and documents we provide, whether through the customer portal, an automated assistant, our team or otherwise, are given in good faith for your information only and do not form part of the warranty in clause 14.1.
15. Your responsibility for suitability and compliance
15.1 You are responsible for:
(a) satisfying yourself that the products are suitable for your intended use, fill materials, equipment and finished products;
(b) incoming inspection and quality control of each Lot before use;
(c) the formulation, manufacture, testing, labeling, marketing and supply of your finished products; and
(d) ensuring that your finished products comply with all laws, regulations, standards, authorizations and pharmacopeial requirements in every territory in which you operate.
15.2 You will keep records that allow every Lot of our products you use to be traced to your finished products, for at least 5 years.
16. Returns
16.1 Products that conform to the Order Acknowledgment and the Specification cannot be returned.
16.2 Non-conforming products may be returned only with our prior written authorization and in accordance with our instructions. Returned products become our property on receipt and are not placed back into salable stock.
17. Cancellation and changes
17.1 You may cancel an order for stock products before dispatch only with our prior written consent. If we consent, you will pay any costs we have incurred, including picking, packing, carriage arranged and any charges from our warehouse or carrier.
17.2 You may cancel a Special Procurement Order only with our prior written consent. If we consent, you will pay all costs we have incurred or are committed to in procuring, importing, moving or storing the stock for that order, including product cost, freight, duties, warehousing and finance costs. Alternatively, at our option, you will take delivery of the stock already procured at the order price.
17.3 Orders for Custom Products cannot be canceled once approved under clause 4.
17.4 We may cancel an order, in whole or in part, before delivery if you do not pay any amount when due, if any event in clause 22.1 occurs, or if clause 21 applies. We will refund any amount you have paid for products not delivered.
18. Recalls and traceability
18.1 If we, our manufacturer or a regulator decide that any Lot must be recalled or withdrawn, you will cooperate with us, including by quarantining the affected products, giving us traceability information for the Lot, and returning or destroying products as we reasonably direct.
18.2 You will tell us promptly in writing if you become aware of any regulatory action, complaint or safety concern relating to our products.
18.3 Clause 19 applies to any cost, loss or liability arising from a recall or withdrawal.
19. Limitation of liability
19.1 Nothing in these Conditions limits or excludes our liability for death or personal injury caused by our negligence, for fraud or fraudulent misrepresentation, for breach of the warranty of title, or for any other liability that cannot be limited or excluded by law.
19.2 SUBJECT TO CLAUSE 19.1, WE ARE NOT LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR ANY OF THE FOLLOWING, WHETHER DIRECT OR INDIRECT:
(A) LOSS OF, OR DAMAGE TO, ANY ACTIVE INGREDIENT, FILL MATERIAL, EXCIPIENT, PACKAGING OR OTHER COMPONENT USED WITH THE PRODUCTS;
(B) LOSS OF, OR DAMAGE TO, ANY FINISHED OR PART-FINISHED PRODUCT, OR THE COST OF MANUFACTURING, TESTING, REWORKING, REPACKING, DESTROYING OR REPLACING IT;
(C) THE COST OF ANY RECALL, WITHDRAWAL, REGULATORY ACTION OR CUSTOMER NOTIFICATION RELATING TO YOUR PRODUCTS;
(D) LOSS OF PROFIT, REVENUE, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS OR GOODWILL, OR BUSINESS INTERRUPTION; OR
(E) ANY INDIRECT OR CONSEQUENTIAL LOSS.
19.3 SUBJECT TO CLAUSES 19.1 AND 19.2, OUR TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY CONTRACT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, IS LIMITED TO THE PRICE PAID FOR THE PRODUCTS THAT GAVE RISE TO THE CLAIM.
19.4 You must bring any claim against us within 12 months after the date you became aware, or ought reasonably to have become aware, of the facts giving rise to it.
19.5 You acknowledge that the price of the products reflects the allocation of risk in this clause, that you are responsible for incoming inspection under clause 15, and that you are able to insure against the losses excluded in clause 19.2.
20. Indemnity
You will indemnify us against all liabilities, losses, damages, costs and expenses (including reasonable legal fees) arising out of or in connection with:
(a) any claim relating to your finished products, except to the extent caused by our breach of clause 14.1;
(b) any claim that artwork, a name, mark or design you provided or approved infringes the rights of a third party; or
(c) your breach of clause 10.
21. Force majeure and allocation
21.1 We are not in breach of a Contract, and are not liable for any delay or failure to perform it, to the extent caused by an event beyond our reasonable control. Such events include failure or delay of a manufacturer or carrier, shortage of raw materials, disruption to shipping, ports or customs, changes in tariffs, trade restrictions or sanctions, fire, flood, storm, epidemic, war, terrorism, civil unrest, industrial action, failure of utilities or systems, and any act of government or regulator.
21.2 Where supply of any product is limited for any reason, we may allocate available stock between our customers, and between our own contractual commitments, as we see fit. We are not liable for any shortfall in supply that results from an allocation.
21.3 If an event in clause 21.1 prevents delivery for more than 60 days, either party may cancel the affected undelivered part of the order by written notice without liability, and we will refund any amount paid for it.
22. Suspension and termination
22.1 We may suspend or cancel any undelivered order, and all amounts you owe us become immediately due, if:
(a) you do not pay any amount when due;
(b) you breach these Conditions and do not remedy the breach within 7 days of our notice;
(c) you suspend or threaten to suspend payment of your debts, are unable to pay your debts as they fall due, enter into any arrangement with your creditors, have an administrator, receiver, liquidator or similar officer appointed, are the subject of a winding-up petition or order, or suffer any analogous event in any jurisdiction; or
(d) you cease or threaten to cease carrying on business.
22.2 Termination or cancellation does not affect any rights or obligations that have accrued. Clauses 4.2, 4.4, 8, 10, 12, 14 to 20, 23 and 25 survive.
23. Confidentiality
Our prices, credit terms and the terms of any Contract are confidential. You will not disclose them to any third party except to your professional advisors, or as required by law.
24. Data and records
We handle personal data about your personnel as described in our Privacy Policy. We retain records of each Contract, including quality and traceability records, for at least 5 years, and accounting records for at least 6 years, or longer where law or regulation requires.
25. General
25.1 Assignment. We may assign, transfer or subcontract any of our rights or obligations under a Contract. You may not do so without our prior written consent.
25.2 Entire agreement. The Contract is the entire agreement between you and us about its subject matter. You acknowledge that you have not relied on any statement, promise or representation not set out in it. Nothing in this clause limits liability for fraud.
25.3 Variation. No variation of a Contract or these Conditions is effective unless agreed in writing by us.
25.4 Waiver. A failure or delay in exercising a right is not a waiver of it.
25.5 Severance. If any provision is invalid or unenforceable, it is modified to the minimum extent necessary to make it valid, or if that is not possible deleted, and the rest of the Contract continues in force.
25.6 Third party rights. No one other than you and us has any right to enforce a Contract.
25.7 Notices. Notices must be in writing and sent to the email or postal address on your account, or to us at sales@capsules.com or our registered office. Claims under clause 13 go to quality@capsules.com. A notice by email takes effect when sent if sent during business hours on a Business Day, and otherwise at 9am on the next Business Day.
25.8 International sale of goods. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any Contract.
25.9 Language. These Conditions are written in English. If they are translated, the English text prevails.
25.10 Changes to these Conditions. We may update these Conditions from time to time. The version published on our website when we issue the Order Acknowledgment applies to that Contract.
26. Governing law and jurisdiction
These Conditions and every Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them, are governed by the law of England and Wales. The courts of England and Wales have exclusive jurisdiction.
If you are located in the United States, you acknowledge that you are contracting with a company in England and Wales and you agree to this choice of law and jurisdiction.
27. Contact
CAPSULES DIRECT LTD
Rowood House, 26 Murdock Road, Bicester, Oxfordshire, OX26 4PP, United Kingdom
Company number 17362490
VAT number GB530725510
Orders and accounts: sales@capsules.com
Quality and product claims: quality@capsules.com
Telephone: (816) 445-0042