1. Interpretation
The following definitions and rules of interpretation apply in this Contract.
1.1 Definitions:
Applicable Laws: the Human Medicines Regulations 2012 and all other laws, rules and regulations (howsoever enacted) and all statutory guidance and professional guidance issued by the relevant regulatory bodies (including the General Pharmaceutical Council) relating to the sale or supply of medicines and/or medicinal products and/or devices for human use or consumption (each as amended, updated or re-enacted from time to time and to the extent that the same are applicable in the UK;
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 19.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services which comprises an Order and these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Data Protection Legislation: means the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any other data protection legislation applicable in the UK from time to time, and terms in clause 13 relating to data protection shall, unless the context otherwise requires, have the respective meanings given to them in the Data Protection Legislation.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 18.
Goods: the goods (or any part of them) that are set out in the Order.
Goods Specification: any specification for the Goods, including any specification on the Website.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the supply of Goods and/or Services via the Website or, where applicable, as set out in the order form provided by the Customer to the Supplier (whether by fax, NHS Electronic Transfer of Prescriptions or otherwise).
Personal Data:personal data (as defined in the Data Protection Legislation) processed by the Supplier on behalf of the Customer pursuant to the Contract.
Services: the servicessupplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Speeds Healthcare Ltd registered in England and Wales with company number 07762072.
Supplier Materials: has the meaning given in clause10.1.8.
Website: the Supplier’s website located atwww.speedsmedical.co.uk and/or www.speedshealthcare.co.uk (as the case may be) through which Orders may be placed.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted from time to time. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 Each Order shall only be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing written acceptance of the Order by email;
2.2.2 the Supplier issuing an invoice (or otherwise requesting payment) in respect of the Order; and
2.2.3 the Supplier taking steps towards fulfilling the Order (including by dispatching Goods or commencing the performance of Services),
at which point and on which date the Contract shall come into existence (the Commencement Date).
2.3 If the Supplier is unable to supply the Customer with the Goods and/or Services, this will be confirmed by the Supplier and the Order will not be accepted.
2.4 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.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 (twenty) Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. Goods
3.1 The Goods are described on the Website and/or in the relevant Order. Any images of the Goods on the Website are for illustrative purposes only and are published for the sole purpose of giving an approximate idea of the Goods described. Although the Supplier has made every effort to display the packaging and colours accurately, the Supplier cannot guarantee that any packaging or colours of any Goods supplied will not vary slightly.
3.2 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3.3 The Goods may include wholesale medicinal products supplied by the Supplier to the Customer for the Customer to use as it deems appropriate (including the sale, administering or dispensing to an individual by the Customer) in accordance with Applicable Laws. In respect of the wholesale supply of medicinal products, the Supplier will use reasonable endeavours to comply with the standards set out in the GDP.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 where the Goods in any Order include wholesale medicinal products,the Supplier will ensure that the delivery note referred to in clause 4.1.1 meets the standards set out in the GDP, including the requirement to state the date, the name and pharmaceutical form of the medicinal product, the batch number at least for such products bearing the safety features; quantity supplied; name and address of the Supplier, name and address of the Customer and actual physical storage premises (where different) and any applicable transport and storage conditions.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree, provided thatwhere the Goods in any Order are medicinal products, delivery will be made to the address on the delivery note only (the Delivery Location).
4.3 Delivery of the Goods shall be deemed completed on the completion of the unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence (provided that, where the Goods in any Order are medicinal products, the Supplier will ensure that such Goods are delivered within a satisfactory time period in accordance with the GDP).
4.5 The Customer shall notify the Supplier:
4.5.1 of any late or non-delivery of Goods, within 3 (three) Business Days of the delivery date quoted by the Supplier; and/or
4.5.2 of any error in the type or quantity of Goods delivered:
4.5.2.1 (for thermolabile Goods), on or before the next Business Day after completion of delivery; and/or
4.5.2.2 (for any other Goods) within 3 (three) Business Days of the completion of delivery,
and, if the Customer fails to give notice in accordance with this clause 4.5, the Supplier shall be deemed to have delivered (and the Customer shall be deemed to have accepted delivery of) the quantity of Goods stated in the delivery note on the delivery date quoted by the Supplier.
4.6 In the event of late delivery, unless otherwise agreed between the parties, the Customer may not reject the Goods and the Customer’s sole and exclusive remedy shall be for the Supplier to complete delivery of the Goods as soon as reasonably practicable (or on such later date as may be agreed between the parties).
4.7 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by:
4.7.1 a Force Majeure Event;
4.7.2 the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods; or
4.7.3 in respect of any Goods that are medicinal products:
4.7.3.1 a manufacturing delay with the Goods;
4.7.3.2 a change in law or regulation in relation to the sale and supply of the Goods; or
4.7.3.3 the recall of the Goods by the manufacturer or any other relevant regulatory body.
4.8 Subject to clause 4.5 and unless otherwise agreed between the parties:
4.8.1 if the Supplier delivers less than the quantity of Goods ordered, the Customer may not reject the Goods and the Supplier may (at the Customer’s option):
4.8.1.1 invoice the Customer for the full quantity of Goods ordered and issue a credit note to the Customer for the value of the shortfall in Goods actually delivered; or
4.8.1.2 invoice the Customer for the actual quantity of Goods delivered; and
4.8.2 if the Supplier delivers more than the quantity of Goods ordered, the Customer may:
4.8.2.1 accept the delivery in full, in which case the Supplier shall charge the Customer (and the Customer shall pay) for the actual quantity of Goods delivered; or
4.8.2.2 accept the delivery of the quantity of Goods ordered, and reject only the excess quantity of Goods (in which case clause 8.2shall apply in respect of the rejection of the excess Goods).
4.9 If the Customer fails to accept delivery of the Goods within 3 (three) Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.9.1 delivery of the Goods shall be deemed to have been completed at 09:00 on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready;and
4.9.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.10 If the Customer has not accepted delivery of the Goods within10 (ten) Business Days after the Supplier notified the Customer that the Goods were ready for delivery, the Supplier may resell or otherwise dispose of part or all of the Goods and, in respect of any Goods which are no longer in saleable condition (or have otherwise diminished in value) as a result of the Customer’s failure to accept delivery (including without limitation where the Goods are perishable or have a short shelf-life), the Supplier may charge the Customer (and the Customer shall pay) for such Goods as if delivery had been accepted.
4.11 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Quality of Goods
5.1 The Supplier warrants that, on delivery,the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Goods Specification;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose held out by the Supplier.
5.2 The Customer shall inspect the Goods upon completion of delivery and shall notify the Supplier within 3 (three) Business Days of completion of delivery of any non-conformance of the Goods to the warranties in clause 5.1.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranties in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage by and/or negligence of the Customer or abnormal working conditions;
5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
5.3.7 where the Goods are medicinal products:
5.3.7.1 the Goods have not been stored or transported by the Customer in line with the storage or transportation instructions;
5.3.7.2 the Customer cannot or refuses to provide documentation in accordance with the GDP to evidence the appropriate storage or transportation in accordance with clause 5.3.7.1; or
5.3.7.3 the Goods are returned in an unsaleable condition, including damage to the packaging, any breakage or damage to any anti-tampering device and any other circumstances either in accordance with the GDP or in the reasonable view of the Supplier, rendering the Goods incapable of resale due to the fault of the Customer.
5.4 Except as expressly set out in these Conditions, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranties set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 not act in any way that is inconsistent with the Supplier’s ownership of title to the Goods, including reselling and attempting to resell the Goods;
6.3.4 maintain the Goods in a satisfactory and saleable condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 16.2.2to clause 16.2.4;and
6.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 16.2.2 to clause 16.2.4, then, without limiting any other right or remedy the Supplier may have the Supplier may at any time:
6.4.1 require the Customer to deliver up all Goods in its possession in respect of which title remains with the Supplier; and
6.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Cancellation of Orders
The Customer may cancel an Order at any time prior to the Commencement Date and receive a refund of any payment made to the Supplier, by notifying the Supplier in writing.
8. Return and refund of Goods
8.1 The Customer may reject Goods which are delivered by the Supplier only in accordance with this clause 8. The Customer’s sole and exclusive remedy in respect of rejected Goods shall be for the Supplier to (at its option) repair, replace or refund the full price of the rejected Goods, provided that such remedies are conditional upon:
8.1.1 the Customer notifying the Supplier of the reason for such rejection in accordance with this clause 8;
8.1.2 where the rejected Goods are thermolabile, the Customer storing such Goods at the correct temperature (and in accordance with any other storage instruction notified by the Supplier to the Customer); and
8.1.3 (if asked to do so by the Supplier) the Customer returning the rejected Goods (which shall be clearly marked or identified on the outer packaging as “returned goods”) to the Supplier’s place of business, at the Customer’s cost.
8.2 The Customer may reject Goods in the event of an error made by the Supplier in respect of the type of Goods or (subject to clauses 8.5 and 8.8) the quantity of Goods delivered pursuant to an Order, provided that the Customer gives notice of such error to the Supplier in accordance with clause 8.5.2.
8.3 Subject to clause 5.3, the Customer may reject Goods which do not conform to the warranties in clause 5.1, provided that:
8.3.1 the Customer gives notice to the Supplier in accordance with clause 5.2 (or, where such non-conformance could not reasonably have been identified upon delivery, the Customer gives notice of such non-conformance to the Supplier within 3 (three) Business Days of the date upon which the Customer becomes aware, or ought reasonably to have become aware, of such non-conformance); and
8.3.2 the Supplier is given a reasonable opportunity of examining such Goods.
8.4 The Customer may reject Goods which are subject to a product recall by the manufacturer or a relevant regulatory body,provided that the Customer notifies the Supplier of its intention to reject the Goods as a result of such product recall within 3 (three) Business Days of the date upon which the Customer becomes aware, or ought reasonably to have become aware, of such product recall.
9. Supply of Services
9.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
9.2 The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
9.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9.5 Where the Services include the provision by the Supplier to individual persons of medicinal products that have been issued pursuant to a private or NHS prescription, in its performance of such Services the Supplier shall:
9.5.1 at all times comply with Applicable Laws; and
9.5.2 only dispense such medicinal products, further to exercising its professional discretion, on the satisfactory completion of all relevant clinical checks in respect of such prescribed medicinal products.
9.6 The Supplier shall obtain and maintain throughout the duration of the Contract professional indemnity insurance with such level of cover as the Supplier reasonably deems appropriate.
10. Customer’s obligations
10.1 The Customer shall:
10.1.1 ensure that the terms of the Order and any information it provides in the Service Specificationand the Goods Specificationare complete and accurate;
10.1.2 co-operate with the Supplier in all matters relating to the Services;
10.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
10.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
10.1.5 where applicable, prepare the Customer’s premises for the supply of the Services;
10.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
10.1.7 comply with all applicable laws, including health and safety laws;
10.1.8 keep all materials, equipment, documents and other property of the Supplier (the Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
10.1.9 comply with any additional obligations as set out in the Service Specification and the Goods Specification.
10.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (a Customer Default):
10.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
10.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 10.2; and
10.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
11. Charges and payment
11.1 The price for the Goods shall be the price set out in the Order and, unless otherwise expressed in the Order, shall be exclusive of:
11.1.1 all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer; and
11.1.2 any delivery charges which will be notified to the Customer separately.
11.2 The Supplier reserves the right to refuse to accept any Order in the event of incorrect prices being displayed on the Website.
11.3 If the Supplier discovers an error in the price of the Goods contained in the Order, the Supplier shall contact the Customer in writing to inform them of this error. In such circumstances, the Customer may continue to purchase the Goods at the correct price or cancel the Order. If the Supplier is unable to contact the Customer within a reasonable period, the Order will be deemed as cancelled and the Customer will be notified in writing. Where the Supplier mistakenly accepts and processes an Order where any pricing error is obvious and unmistakeable and should reasonably have been recognised as such by the Customer, the Supplier reserves the right to cancel the supply of the Goods and refund the Customer for any sums paid.
11.4 The charges for the Services shall be either in accordance with a fixed quotation set out in the Order, or otherwise calculated on a time and materials basis. Where Services are to be charged on a time and materials basis:
11.4.1 the charges shall be calculated in accordance with the Supplier’s standard daily fee rates (or otherwise as set out in the Order);
11.4.2 the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight hour day, between the hours of 08:00 and 18:00 (exact working hours to be agreed between the parties) on Business Days; and
11.4.3 the Supplier shall be entitled to charge an overtime rate of [PERCENTAGE] per cent of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 11.4.2; and
11.4.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
11.5 The Supplier reserves the right to:
11.5.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date provided that such an increase shall not exceed the greater of 10 (ten) per cent and the percentage increase to the Retail Prices Index in the 12 (twelve) month period preceding such anniversary of the Commencement Date; and
11.5.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
11.5.2.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
11.5.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
11.5.2.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
11.6 In respect of Orders made via the Website, the Customer may make payment using a debit or credit card at the time of making the Order.Otherwise, the Supplier shall invoice the Customer:
11.6.1 (where the Customer has registered a credit account with the Supplier) monthly in arrears, for the Customer’s credit balance (set out in the credit statement provided by the Supplier); or
11.6.2 (for Orders for Services) at the Supplier’s option, on completion of performance of the Services or monthly in arrears.
11.11 The Customer shall pay each invoice submitted by the Supplier:
11.7.1 before the last Business Day of the month following the month in which the Supplier provides to the Customer an invoice or credit statement pursuant to clause 11.6; and
11.7.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
11.8 Any dispute or query regarding the amount of an invoice submitted by the Supplier to the Customer must be notified to the Supplier in writing within 5 Business Days of the Customer’s receipt of the invoice. In the absence of such notice, the Customer shall be deemed to have accepted the accuracy of such invoice and must make payment in accordance with clause 11.7.
11.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11.10 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 16, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 11.10 will accrue each day at 4 (four) per cent a year above the Bank of England’s base rate from time to time.
7.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. Intellectual Property Rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Goods or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
12.2 To the extent that any of the Intellectual Property Rights referred to in clause 12.1 do not automatically vest in the Supplier, in consideration of the Supplier’s performance of its obligations under the Contract, the Customer hereby assigns such Intellectual Property Rights to the Supplier (and, to the extent that such assignment shall be deemed to be invalid, the Customer shall hold such Intellectual Property Rights on trust for the Supplier).
12.3 Each party hereby grants to the other a revocable, non-exclusive, non-transferable, fully paid-up, royalty free licence (without the right to sub-licence) to use, for the duration of the Contract, such of its Intellectual Property Rights as the other party reasonably needs to in connection with the performance of its obligations under the Contract.
13. Data Protection
13.1 Both parties shall (and shall procure that any of their respective directors, officers, employees, permitted agents, licensees and contractors shall) comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2 In respect of Personal Data, the parties agree and acknowledge that the Customer is the controller and the Supplier is a processor acting on behalf of the Customer. Processing of personal data by the Supplier under the Contract shall be restricted in terms of its subject matter, nature and purpose to such processing activities (and for such purposes) as the Supplier is reasonably required to undertake in connection with its provision of Goods and/or Services under the Contract; in respect of its duration to the duration of the term of the Contract (and such reasonable period thereafter as the parties may agree in writing); and in respect of the types of Personal Data and categories of data subject to the types of data and data subjects notified by the Customer to the Supplier from time to time in writing.
13.3 The Customer shall:
13.3.1 ensure that it has in place all necessary appropriate legal bases, consents (if required), notices and policies to enable the lawful transfer of Personal Data to, and the lawful processing of such Personal Data by, the Supplier;
13.3.2 ensure that all Personal Data transferred to the Supplier shall be accurate and up-to-date;
13.3.3 not instruct the Supplier to undertake any processing activity that does not comply with the Data Protection Legislation;
13.3.4 not knowingly or negligently do or omit to do anything which places the Supplier in breach of its obligations under the Data Protection Legislation; and
13.3.5 indemnify the Supplier (to the fullest extent permitted by law) against any claim, loss, damage, expense or fine arising (a) under the Data Protection Legislation that the Supplier may incur as a result of any action or omission by the Customer (unless such action or omission is specifically requested by the Supplier); or (b) out of or in connection with any breach by the Customer of this clause 13.
13.4 The Supplier shall:
13.4.1 process Personal Data only on the written instructions of the Customer (including the Contract), save where otherwise required by law (in which case the Supplier will notify the Customer of such requirement prior to such processing, unless prohibited from doing so by such law);
13.4.2 transfer Personal Data outside the EEA only where the European Commission has adopted a decision that the recipient country ensures an adequate level of protection or where the Supplier provides appropriate safeguards and ensures the availability for data subjects of enforceable data subject rights and effective legal remedies (in accordance with the requirements of the Data Protection Legislation);
13.4.3 obtain a commitment of confidentiality from any person it allows to process Personal Data;
13.4.4 engage third parties to process Personal Data on its behalf only with the prior consent of the Customer and on contractual terms no less restrictive than this clause 13;
13.4.5 implement appropriate technical and organisational measures to (a) ensure an appropriate level of security of Personal Data; and (b) assist the Customer to respond to requests for exercising data subjects’ rights;
13.4.6 assist the Customer to comply with their obligations in respect of any personal data breach (including notification of the same to the supervisory authority and/or data subjects);
13.4.7 make available to the Customer on request all information reasonably necessary to demonstrate compliance with this clause13; and
13.4.8 on termination or expiry of the Contract (however caused), at the Customer’s choice and cost, delete or return to the Customer all Personal Data and copies thereof that it has within its power, ownership or control.
14. Confidentiality
14.1 Each party undertakes that it shall not at any time during the Contract, and for a period of 5 (five) years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s confidential information:
14.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause14.2; and
14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
15. Limitation of liability
15.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
15.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
15.1.2 fraud or fraudulent misrepresentation;
15.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
15.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
15.2 Subject to clause 15.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
15.2.1 loss of profits;
15.2.2 loss of sales or business;
15.2.3 loss of agreements or contracts;
15.2.4 loss of anticipated savings;
15.2.5 loss of use or corruption of software, data (excluding Personal Data) or information;
15.2.6 loss of or damage to goodwill;
15.2.7 any indirect or consequential loss; or
15.2.8 any loss or damage (including personal injury) arising out of or in connection with the use or consumption by any person of Goods (including medicines) supplied by the Supplier to the Customer under this Contract or dispensed against a valid prescription by the Supplier to an individual as part of the Services provided by the Supplier under this Contract.
15.3 Subject to clause 15.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 100 (one hundred) per cent of the total charges paid under the Contract.
15.4 All terms and warranties implied by law or otherwise, including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
15.5 This clause 15 shall survive termination of the Contract.
16. Termination
16.1 Unless otherwise agreed between the parties, a Contract for Services shall continue until the later of: (i) completion of performance of the Services; and (ii) payment in full by the Customer. Where the Order expresses a termination notice period, either party may terminate the Contract by giving the other party not less than the specified period’s notice. Where the Order expresses a minimum term, such notice must not expire earlier than the expiry of the specified minimum term.
16.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
16.2.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14(fourteen) days after receipt of notice in writing to do so;
16.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
16.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
16.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
16.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
16.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
16.3.2 there is a change of Control of the Customer.
16.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of the Services or the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 16.2.2 to clause 16.2.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
17. Consequences of termination
17.1 On expiry or termination of the Contract:
17.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
17.1.2 the Customer shall return all of the Supplier Materials or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
17.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, 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.
17.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
18. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).
19. General
19.1 Assignment and other dealings
19.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
19.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
19.2 Notices.
19.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Orderor otherwise notified by the receiving party.
19.2.2 Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 09:00 on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 09:00 on the next Business Day after transmission.
19.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
19.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
19.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
19.6 Entire agreement.
19.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
19.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
19.7 Third party rights.Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
19.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
19.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
19.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.