Terms and Conditions of Purchase
The Target Healthcare Group
Terms and conditions for the purchase of goods and/or services
Interpretation
Definitions:
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes fax and email.
Basis of contract
The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
The Order shall be deemed to be accepted on the earlier of:
the Supplier issuing written acceptance of the Order; or
any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (the “Commencement Date”).
These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
Supply of Goods
The Supplier shall ensure that the Goods shall:
correspond with their description and any applicable Goods Specification;
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgement;
where they are manufactured products, be free from defects in design, materials and workmanship and remain so for the Warranty Period;
comply with all applicable statutory and regulatory requirements, including all Cybersecurity Requirements; and
be free from all Viruses and Vulnerabilities.
The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
If following such inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
Delivery of Goods
The Supplier shall ensure that:
the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
The Supplier shall deliver the Goods:
on the Delivery Date;
at the Delivery Location; and
during Business Hours or as instructed by the Customer.
Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.1.
Title and risk in the Goods shall pass to the Customer on completion of delivery.
Supply of Services
The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.
The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier and time is of the essence in relation to any of those performance dates.
In providing the Services, the Supplier shall:
co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
perform the Services with: (i) the best care, skill and diligence; (ii) in a timely, reliable and professional manner; and (iii) in conformity with Good Industry Practice;
use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;
ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
provide all equipment, tools and vehicles and such other items as are required to provide the Services;
use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises;
hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (“Customer Materials”) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose of or use the Customer Materials other than in accordance with the Customer's written instructions or authorisation;
not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services;
ensure the Services comply with all applicable statutory and regulatory requirements, including all Cybersecurity Requirements;
ensure that not Viruses or Vulnerabilities are introduced to the Customer’s computer systems; and
comply with any additional obligations as set out in the Service Specification.
Customer remedies
If the Supplier:
fails to deliver the Goods or perform the Services by the applicable date;
has delivered Goods that do not comply with the undertakings set out in clause 3.1, whether or not the Customer has accepted the Goods; or
has supplied Services that do not comply with the requirements of clause 5.3.4,
- then the Customer shall, without limiting or affecting other rights or remedies available to it, have any one or more of the following rights and remedies:
to terminate the Contract with immediate effect by giving written notice to the Supplier;
to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
to refuse to accept any subsequent performance of the Services or delivery of the Goods which the Supplier attempts to make;
to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods, services or deliverables from a third party;
to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided or Goods that it has not delivered; and
to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to meet such dates, to supply Goods in accordance with clause 3.1 or to perform the Services in accordance with clause 5.3.4;
to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid).
These Conditions shall extend to any substituted or remedial services or repaired or replacement goods supplied by the Supplier.
The Customer's rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
Customer's obligations
The Customer shall:
provide the Supplier with reasonable access at reasonable times to the Customer's premises for the purpose of providing the Services; and
provide such necessary information for the provision of the Services as the Supplier may reasonably request.
Charges and payment
The price for the Goods:
shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier's published price list in force at the Commencement Date; and
shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.
The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including the relevant purchase order number.
In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 30 Business Days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued 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 Goods or Services or both, as applicable, at the same time as payment is due for the supply of the Goods or Services.
If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party 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 will accrue each date at 4% a year above the Bank of England's base rate from time to time, but at: (i) 4% a year for any period when the base rate is below 0%; and (ii) 10% a year for any period when the base rate is above 6%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 7 days after the dispute is resolved until payment.
The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
Intellectual property rights
In relation to the Customer Materials:
the Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
the Customer grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer.
In relation to the Deliverables:
the Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Deliverables;
the Supplier shall obtain waivers of all moral rights in the Deliverables to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction; and
the Supplier shall, promptly at the Customer's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with clause 9.2.1.
The Supplier:
warrants that the receipt, use and onward supply of the Services and the Deliverables (excluding the Customer Materials) by the Customer and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
shall indemnify the Customer in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables (excluding the Customer Materials).
Indemnity
The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:
any claim made against the Customer for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Customer Materials);
any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables, to the extent that the defects in the Goods or Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
This clause 10 shall survive termination of the Contract.
Insurance
During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall produce to the Customer on demand both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
Compliance with relevant laws and policies
In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.
Termination
Without affecting any other right or remedy available to it, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
the Supplier commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
an Insolvency Event occurs in relation to the Supplier;
the Supplier suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
the Supplier's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
the Supplier, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
the Supplier breaches the provisions of clauses 16.1 (Licences and information) or 11.2 (Prevention of bribery and sanctions) or otherwise any Required License is suspended or revoked.
On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
Termination or expiry of the Contract shall not affect the parties' rights and remedies that have accrued as at 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.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
Confidentiality
Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.
Each party may disclose the other party's confidential information:
to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 14; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
Force majeure
- Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 2 weeks’ written notice to the affected party.
General
Licences and information
The Supplier hereby represents and warrants that it possesses all necessary licenses, permissions, authorizations, consents, and permits that are required under the applicable laws and regulations for the lawful sale, marketing, distribution and performance of the Goods and/or Services, as applicable ("Required Licenses").
The Supplier further undertakes to maintain the validity and enforceability of the Required Licenses throughout the term of the Contract. The Supplier shall ensure that all Required Licenses are kept up to date and shall comply with all terms and conditions of such licenses.
The Supplier shall promptly notify the Customer in writing of any pending or threatened regulatory actions, inspections, changes to the Required Licenses, or any other matters known to the Supplier that may materially affect the Supplier's ability to fulfil its obligations under the Contract or the validity or enforceability of any Required Licenses. Such notification shall be delivered to the Customer no later than five Business Days after the Supplier becomes aware of such an event or circumstance.
The Customer reserves the right to disclose details pertaining to the Supplier and any Orders in response to any requests of regulatory bodies such as the Medicines and Healthcare products Regulatory Agency (MHRA), the National Health Service (NHS), or any other statutory or governmental authority with competent jurisdiction. The Customer shall not be required to provide prior notice or obtain consent from the Supplier for such disclosure.
The provisions of this clause 16.1 shall survive the expiration or termination of Contract.
Prevention of bribery and sanctions
Each party shall comply with the provisions of the Bribery Act 2010 and shall take all measures necessary to ensure that its employees, consultants and contractors do not do anything on behalf of that party which would constitute a breach of the Bribery Act 2010 by that party.
Each party shall promptly report to the other party any incidents or allegations of bribery in connection with the Contract.
Each party acknowledges the existence of Sanctions Laws and shall ensure that it complies with all applicable Sanctions Laws to which either the Customer or the Supplier are subject, including those of any jurisdiction where either the Customer or the Supplier are located or incorporated.
Each party shall not take any action or refrain from taking any action which would, or would in the reasonable opinion of the party subject to Sanctions Laws, cause such party to breach such Sanctions Laws.
The Supplier shall carry out appropriate due diligence with regards to any third party from whom Goods are purchased. The Supplier shall ensure that it has no knowledge or reasonable cause to suspect that any activities related to Goods will, either directly or indirectly, involve any sanctioned person or will otherwise be in breach of Sanctions Laws.
In the event of either party becoming a sanctioned person, the other party may terminate any Contract with immediate effect and without payment of compensation.
Assignation and other dealings.
The Customer may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
The Supplier may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Customer.
Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Notices.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
delivered by hand, 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 email to the following addresses (or an address substituted in writing by the party to be served):
- Supplier: such email address as is used by, or ordinarily associated with, any person who is responsible for, or habitually involved in, the management or administration of the Contract.
- Customer:
Any notice shall be deemed to have been received:
if delivered by hand, 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 9:00am on the second Business Day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
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 Scots law.
Jurisdiction. Each party irrevocably agrees that the Scottish courts 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.