Supplier terms and conditions- Goods/Services not for resale (GNFR)
Standard GNFR Terms and Conditions of Purchase for Goods and Services not for resale (GNFR)
These terms and conditions apply to all Affiliates of Admenta UK Limited including but not limited to: Lloyds Pharmacy Limited, AAH Pharmaceuticals Limited, Expert Health Limited, Lloyds Pharmacy Clinical Homecare Limited, John Bell & Croyden Limited, Metabolic Healthcare Limited and MASTA Limited. We may update these Conditions periodically. Updates will be made available on our website. It is your responsibility to check this webpage periodically to ensure you are aware of and understand the Conditions which apply on the date an Order is placed by us. These Conditions apply to the exclusion of any other terms which you as Supplier seek to impose or incorporate. No other terms are implied by trade, custom, practice or course of dealing.
1.1 The following definitions and rules of interpretation apply to the Contract and in these Conditions.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common
control with another entity;
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Customer means the company that places an Order with the Supplier, such customer(s) being the Affiliates of Admenta UK Ltd (Company Number: 03011757) whose registered office is at Sapphire Court, Walsgrave Triangle, Coventry, CV2 2TX;
Contract means the contract between the Customer and the Supplier for the purchase of the Goods and/or the performance of the Services consisting of an Order, these Conditions, the Contract Details (if applicable) any other documents (or parts thereof) specified in the Order and the Supplier’s acceptance of the relevant Order. For the avoidance of doubt, each Order together with the documents listed in this clause constitute a separate Contract made in accordance with and incorporating these Terms and Conditions. Should there be any inconsistency between the documents comprising the Contract, they shall have precedence in the order listed above;
Conditions means these terms and conditions as amended from time to time by the Customer;
Confidential Information means all information or data (whether oral, visual, recorded in writing, in any other medium or by any other method) disclosed to or obtained by one party from the other or from a third party, including without limitation any information relating to a party’s operations, processes, plans, intentions, price lists, pricing structures, know-how, design rights, trade secrets, software, market opportunities, customers, suppliers, and business affairs;
Deliverables means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);
Goods means the Goods (or any instalment or part of them) to be supplied pursuant to the Contract;
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service 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 means the order placed by the Customer whether in writing, electronically or otherwise for the supply of the Goods and/or the performance of the Services, each Order constituting a separate Contract between the Customer and the Supplier;
Supplier means the person, firm or company from whom the Customer purchases the Goods and/or Services and to whom the Order is addressed;
Services means the services (if any), including any Deliverables, described in the Order to be provided by the Supplier under the Contract; and
Specifications means the technical or other requirements (if any) for the Goods or the Services contained or referred to in the Order.
1.2 The headings in these Conditions are for reference only and shall not affect their construction.
1.3 A reference to writing or written does not include e-mail.
1.4 A reference to a statute or a statutory provision is a reference to it as amended and re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.6 A reference to a party includes its successors and permitted assigns.
2. Basis of the Contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services (if applicable) from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
(a) The Supplier issuing a written acceptance of the Order; or
(b) The Supplier doing any act consistent with fulfilling the Order,
at which point, and on which date, the Contract shall come into existence.
2.3 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 trade, custom, practice or course of dealing.
3. Supply of Goods
3.1 The Supplier warrants to the Customer that:
(a) the Goods shall:
(i) correspond with their description, including, for the avoidance of doubt the description on the packaging and any applicable Specification, and for the avoidance of all doubt, where the Supplier makes any changes to the Specification for the Goods it shall notify the Customer as soon as reasonably practicable. Where the Customer does not accept the changes to the Specification then it shall have the right to terminate this Contract in accordance with clause 15;
(ii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for the purpose in accordance with the Specification and/or made known by the Customer to the Supplier expressly and in this respect the Customer relies on the Supplier’s skill and judgement;
(iii) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for no less than 12 months after delivery; and
(iv) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods, including but not limited to the Bribery Act 2010 and (where the Supplier is providing medical devices the Medical Devices Regulations 2002 (SI 2002 No 618, as amended) (UK MDR 2002)).
(b) during the Term of this Contract, it has and will maintain all licenses, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods and, if applicable, that the Customer has the right to re-sell the Goods onto to its own customers;
(c) that the Goods shall conform with any sample provided to the Customer in accordance with clause 3.2 unless otherwise agreed by the Customer.
3.2 The Customer may request a sample at any time before delivery to be provided at the cost of the Supplier.
3.3 All warranties given in Condition 3.1 are conditions of the Contract.
3.4 Each party warrants to the other that it has full power and authority to execute, deliver and perform its obligations under this Contract.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such a manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the purchase Order number, the type and quantity of the Goods, any special storage instructions and, if the Goods are being delivered in instalments, the outstanding balance of goods remaining to be delivered;
(c) it states clearly on the delivery note any requirement for the Customer to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier; and
(d) in delivering the Goods it complies with all reasonable instructions of the Customer including compliance with the Customer’s Supplier manual.
4.2 The Supplier sells and delivers on the basis of DDP (Named Place of Destination) Incoterms 2020 as amended by these Conditions. Supplier and or its nominees are/is responsible for carriage, import duties and taxes, transport and insurance in accordance with DDP (Named Place of Destination) Incoterms 2020 and for providing outer packaging suitable for delivery to the named place of destination.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the delivery location specified in the Order and shall be delivered during the Customer’s normal hours of business on a Business Day unless otherwise instructed by the Customer.
4.4 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be 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.
4.5 The Customer is entitled to accept or reject any supply of Goods which is numerically less than or greater than the amounts stated in an Order.
4.6 Title and risk in the Goods shall pass to the Customer on completion of delivery at the Customer’s elected delivery location (stipulated in the applicable Order).
4.7 If for any reason the Customer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Supplier shall, if his storage facilities permit, store the Goods, safeguard them and take all reasonable steps to prevent their deterioration until their actual delivery and the Customer shall be liable to the Supplier for the reasonable cost (including insurance) of doing so.
4.8 If for any reason the Goods are stored in accordance with Condition 4.7 the Supplier shall not dispose of or otherwise destroy the Goods without giving reasonable written notice in advance to the Customer.
5. Supply of Services
5.1 The Supplier shall from the date set out in the Order and for the duration of the Contract or the Order (as applicable) supply the Services to the Customer in accordance with the terms of the Contract or the Order (as applicable).
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier.
5.3 In providing the Services, the Supplier shall:
(a) provide all reasonable co-operation to the Customer in all matters relating to the Services, and comply with all reasonable instructions of the Customer including compliance with the Customer’s Supplier manual;
(b) perform the Services with due care, skill and diligence and in accordance with best practice in the Supplier’s industry, profession or trade;
(c) 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 or the Order (as applicable);
(d) ensure that the Services and Deliverables conform with all descriptions and Specifications, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the performance of the Services or which are transferred to the Customer, are free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) comply with all applicable laws, regulations, or industry codes which may apply to the provision of the Services;
(i) observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;
(j) 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; and
(k) 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.
6. Customer remedies
6.1 If the Supplier fails to deliver the Goods and/or to perform the Services by the date stated in the Order, the Customer shall be entitled at its sole discretion and without limiting or affecting other rights or remedies available to it, to:
(a) terminate the applicable Order with immediate effect by giving written notice to the Supplier; or
(b) refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) allow the Supplier five (5) Business Days to source the Goods from elsewhere and if the Supplier is unable to do so, to recover from the Supplier any reasonable costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
(d) require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered;
(e) claim damages for any additional costs, loss or expenses incurred by the Customer which are materially attributable to the Supplier’s failure to meet such dates; or
(f) in relation to Goods, deduct £250 from the amount due to the Supplier as a result of the impacts that the failure to supply will have had on the Customer’s supply chain and the parties agree this a genuine pre-estimate of loss.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) to terminate the Contract and/or the applicable Order with immediate effect by giving written notice to the Supplier;
(b) 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;
(c) 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) or at its sole discretion, offset the price of the rejected Goods against other outstanding balances owed to the Supplier;
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any reasonable costs incurred by the Customer in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6.4 The Customer’s rights under the Contract are in addition to its rights and remedies implied by statute and common law.
6.5 Notwithstanding clause 19.3, in the event that the Supplier is hindered in performing its obligations under an Order for any reason including but not limited to events in respect of any virus or pathogen, other infection, epidemic or pandemic in respect of which the World Health Organisation issues an alert to its Global Outbreak Alert and Response Network, the Supplier shall deliver a business continuity plan as necessary on the request of the Customer as to how they intend to continue to perform and mitigate any or any similar events as set out in this clause 6.5. The business continuity plan shall be agreed by the parties within a reasonable time but acknowledging the urgency of the situation and the need to provide the Goods or Services (as applicable) as an essential requirement. The Supplier shall use such reasonable skill, care and diligence as is reasonably practicable to perform its obligations in those circumstances with the staff and resources remaining available to it.
6.6 Notwithstanding clauses 6.1, 6.2 or 10.2(b), if the Supplier recalls or discontinues any of the Goods supplied to the Customer for whatever reason, the Customer shall be entitled to return the affected Goods in return for a full refund of the Fees paid for the Goods by the Customer to the Supplier.
7. Customer’s Obligations
7.1 The Customer shall:
(a) provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services;
(b) provide such necessary information for the provision of the Services as the Supplier may reasonably request; and
(c) store the Goods in the way that the Supplier reasonably notifies to the Customer.
8. Charges and payment
8.1 The charges for the Goods:
(a) shall be the price set out in the Order; and
(b) 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.
8.2 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.
8.3 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 but not limited to the relevant purchase order number and delivery location reference (e.g. branch code). The invoice should be provided via electronic data interface, or via email using PDF format. No mailed invoices will be accepted.
8.4 Unless otherwise agreed in writing by the Customer, in consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay all undisputed invoiced amounts within 75 days’ of the end of the month in which the Customer receives a valid invoice from the Supplier for the Goods and/or Services that have been received, and shall be entitled to deduct a settlement discount of 2.5% of the value of the relevant invoice where the customer pays such invoice within 30 days of the date of the invoice.
8.5 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 Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.6 If the Customer fails to make a payment for undisputed invoices due to the Supplier under the Contract by the due date, then 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 8.6 will accrue each day at 2% a year above the Bank of England’s base rate from time to time. The Supplier shall not be entitled to cancel or suspend performance of the Contract due to late payment of invoices.
8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
8.8 Each party may set off any liability that the other party owes whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Contract. If the liabilities to be set off are expressed in different currencies, the party may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by a party of its rights under this clause 8.8 shall not limit or affect any other rights or remedies available to it under this Contract or otherwise.
9. Intellectual property rights
9.1 All Intellectual Property Rights in and to the Deliverables shall, unless otherwise agreed by the parties in writing, be owned by the Customer. Supplier will assign to the Customer with full title guarantee and free from encumbrances and all other rights, title and interests whether subsisting at the date of the Order or in the future in and to all Intellectual Property Rights in the Deliverables, and the Supplier shall do or procure the doing of all such further acts and execute or procure the execution (as a deed or otherwise) of all such documents as may from time to time be necessary to give full effect to this clause.
9.2 To the extent that any rights, title and/or interests cannot be assigned to the Customer for whatever reason, the Supplier will notify the Customer.
9.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable non-sublicenseable licence to use, copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Goods and Services to the Customer.
9.4 All Customer Materials are the exclusive property of the Customer.
10. Liability and Indemnity
10.1 The Supplier shall indemnify the Customer against all direct and indirect liabilities, costs, expenses, damages and losses (including but not limited to all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:
(a) 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, sale or use of the Goods, or receipt, use or supply of the Services (excluding the Customer Materials);
(b) 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; and
(c) Supplier’s breach of any of its obligations under the Data Protection Laws.
10.2 Subject to Sections 6.1 and 6.2 the Supplier shall indemnify the Customer and its Affiliates against all direct and indirect liabilities, costs, expenses, damages, and losses (including but not limited to reasonable professional costs and expenses for defending such claims) suffered or incurred by the Customer arising out of or in connection with:
(a) any claim made against a Customer in relation to any wording, statements or claims used on packaging of the Goods and/or Supplier’s marketing materials related to the Goods, including but not limited to, any failure of the Goods to comply with Supplier’s wording, statements or claims used on the packaging of the Goods and/or Supplier’s marketing materials; and
(b) any recall of the Goods, regardless of whether such recall is required under applicable laws and following a finding by a competent authority that the Goods do not match wording, statements or claims used on their packaging and/or the Supplier’s marketing materials.
10.3 Nothing in these Conditions or the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) Death or personal injury caused by negligence;
(b) Fraud or fraudulent misrepresentation; and
(c) Breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.4 Subject to clauses 10.1 and 10.2, neither party shall be liable for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, indirect or consequential loss.
10.5 This clause 10 shall survive termination of the Contract.
11.1 During the term of the Contract and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, appropriate insurance cover taking into account the nature of the Goods and \ or Services being supplied, to include without limitation:
(a) Public liability insurance in respect of accidents or injury to persons or property arising out of the performance of its obligations under the Contract or of the employment of any person, the cover provided being not less than £5M (five million pounds) for each claim;
(b) Product liability insurance of not less than £5M (five million pounds) for each claim; and
(c) where appropriate to the supply, Professional indemnity insurance of not less than £5m (five million pounds)
On the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
(a) 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 clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.1 The Supplier will, and will procure that its officers, employees, agents and any other persons who perform services for or on behalf of it in connection with this Contract will:
(a) not commit any act or omission which causes or could cause it or the Customer to breach, or commit an offence under, any laws relating to anti-bribery and;/or anti-corruption, including the Bribery Act 2010;
(b) keep accurate and up to date records showing all payments made and received and all other advantages given and received by it in connection with this Contract and the steps it takes to comply with this clause 13 and permit the Customer to inspect those records as reasonably required;
(c) promptly notify the Customer of:
(i) any request or demand for any improper financial or other advantage received by it; and
(ii) any improper financial or other advantage it gives or intends to give whether directly or indirectly in connection with this Contract; and
(d) promptly give Customer written notice of any breach of this clause 13.1.
13.2 The Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of clause 13.1.
14. Compliance with Anti-Slavery and Human Trafficking Laws
14.1 In performing its obligations under the Contract, Supplier shall:
(a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force including but not limited to the Modern Slavery Act 2015;
(b) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK;
(c) include in contracts with its direct subcontractors and suppliers, provisions which are at least as onerous as those set out in this clause 14.
(d) notify the Customer as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Contract.
(e) maintain a complete set of records to trace the supply chain of all Goods and Services provided to Customer in connection with this Contract; and
(f) permit Customer and its third-party representatives to inspect Supplier’s premises, records, and to meet Supplier’s personnel to audit Supplier’s compliance with its obligations under this clause 14.
14.2 Supplier represents and warrants that at the date of this Contract it has not been convicted of any offence involving slavery and human trafficking; nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.
14.3 Customer may terminate the Contract with immediate effect by giving written notice to Supplier if Supplier commits a breach of this clause 14.
15.1 Without affecting any other right or remedy available to it, the Customer may terminate the Contract:
(a) with immediate effect by giving written notice to the Supplier if:
(i) the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(ii) the Supplier commits a breach of clause 5.3(h); or
(iii) a market withdrawal of the Goods is required due to a change in law or regulation relating to the Goods, or the Customer is no longer able to sell the Goods for legal or regulatory reasons, and the Supplier shall provide the Customer with a full refund of the price paid for the Goods concerned.
15.2 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:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) 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; or
(c) 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.
15.3 Each party shall be entitled to terminate this Contract, without any liability to the other, for any reason on three (3) months’ advance notice in writing.
16. Consequences of termination
16.1 On termination of the Contract, the Supplier shall promptly deliver to the Customer all Deliverables whether or not then complete and return all Customer Materials. 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.
16.2 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.
16.3 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.
17.1 The Supplier shall allow the Customer or the Customer’s authorised representatives or agents to have access to the Supplier’s premises at all reasonable times for the purpose of inspecting and taking copies of the Supplier’s books and records related to this Contract to verify the Supplier’s compliance with its obligations under this Contract and to verify the fees and other charges made to the Customer by the Supplier pursuant to this Contract.
18. Data Protection
18.1 In this clause 18:
“Data Protection Laws” means all applicable privacy and data protection laws including but not limited to the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and the guidance and codes of practice issued by the Information Commissioner (see Article 4(A3), UK GDPR and section 114, DPA 2018) and which are applicable to a party , as amended, supplemented or replaced from time to time;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data including where applicable any local implementing laws as updated from time to time;
“Data Processor”, “Data Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processing”, “Processed” and “Supervisory Authority” have the same meaning as described in the Data Protection Laws.
18.2 Each Party shall comply with its respective obligations pursuant to the Data Protection Laws.
18.3 Where Supplier Processes Personal Data for Customer as a Data Processor, Supplier will:
(a) Process Customer Personal Data solely on the documented instructions of Customer as set out in this Contract (including the processing details set out in Annex I hereto) and any other instructions provided by the Customer in writing from time to time;
(b) take all measures required by Article 32 of the UK GDPR to ensure the security of the Processing of Customer’s Personal Data;
(c) take reasonable steps to ensure the reliability of any staff who Process Customer Personal Data, and their commitment to confidentiality and ensure that such staff receive training in data protection;
(d) not transfer Customer Personal Data to a country that is located outside the United Kingdom unless required to do so by applicable Data Protection Legislation to which Supplier is subject; in such case, Supplier shall inform Customer of that legal requirement before undertaking Processing unless that law prohibits such information on important grounds of public interest;
(e) not permit any third party to Process Customer Personal Data without the prior written consent of Customer, provided that such consent (if given) will be made subject to Supplier meeting the conditions set out in Article 28 (2) and (4) of the UK GDPR;
(f) notify Customer of changes to any of Supplier’s sub-processors, and allow Customer the opportunity to object to such changes;
(g) promptly notify Customer of any communication received by Supplier from a Data Subject regarding the Processing of their Personal Data, or any other communication (including from a Supervisory Authority) relating to either Party’s obligations under the Data Protection Laws in respect of the Processing of Customer’s Personal Data and provide to Customer all reasonable co-operation required to enable Customer to comply with its respective obligations pursuant to the Data Protection Laws;
(h) notify Customer without undue delay (and, in no event, more than twenty-four (24) hours) after becoming aware of a Personal Data Breach, such notice to include all information reasonably required by Customer to comply with its obligations under the Data Protection Laws, and provide all reasonable assistance required by Customer in connection with such Personal Data Breach;
(i) make available to Customer all information reasonably necessary to demonstrate Supplier’s compliance with the obligations set out herein and permit Customer or another auditor mandated by Customer, on reasonable prior notice, to inspect and audit the facilities and systems used by Supplier to Process the Customer Personal Data, and provide all information relating to the technical and organisational measures used by Supplier to ensure the security of the Processing of the Customer’s Personal Data and any and all records maintained by Supplier relating to that Processing;
(j) taking into account the nature of the Processing, assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligations to respond to requests for exercising the Data Subject’s rights under the Data Protection Laws;
(k) immediately inform Customer if, in Supplier’s reasonable opinion, an instruction from Customer infringes Data Protection Laws;
(l) where requested by Customer, delete, transfer or amend any Customer Personal Data; and
(m) cease Processing the Personal Data immediately upon the termination or expiry of this Contract and at Customer’s option either return, or securely delete Customer Personal Data, unless Data Protection Laws require storage of Customer’s Personal Data.
For the purposes of clarity, nothing in this Contract shall relieve Supplier of its own direct responsibilities and liabilities under the Data Protection Laws.
19.1 Assignment and other dealings. The Supplier 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 Customer.
(a) 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).
(b) A 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 9.00 am on the second Business Day after posting. In this clause 19.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) 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 Force Majeure. Subject to clause 6.5, 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 results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for three (3) weeks, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party and the only liability of the Customer shall be to pay the Supplier for Goods received by the Customer and Services performed prior to the date of such suspension.
19.4 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.
19.5 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.
19.6 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.
19.7 Publicity and Advertising. Neither the existence of a Contract nor a party’s name or identity shall be used by the other party for advertisement or publicity purposes without a party’s prior written consent.
19.8 Entire agreement. 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.
19.9 Third party rights. Except as set out in this clause 19.9, a person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. Each and every obligation of Supplier to Customer under this Contract is also owed to the Customer Affiliates, each of whom may enforce the terms of this Contract and references to Customer in the context of Supplier’s obligations shall be construed accordingly. The parties may rescind or vary this Contract (and any documents entered into pursuant to or in connection with it) without the consent of any of the other persons referred to in this clause 19.9.
19.10 Further Assurance. At its own expense, each party shall, and shall use all reasonable endeavours to execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Contract. Where the Contract expires or is terminated, the Supplier shall cooperate and assist the Customer where required to ensure the successful migration of the provision of any Services and/ or the change in supply of Goods, to avoid disruption to the Customer.
19.11 Variation. The Customer may update these Conditions periodically. Updates will be made available on our website. It is your responsibility to check this webpage periodically to ensure you are aware of and understand the Conditions which apply on the date an Order is placed by us.
19.12 Governing law and jurisdiction. 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.
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.
ANNEX I: PROCESSING DETAILS
Annex I includes the details relating to the Processing activities of Supplier in relation to Customer’s Personal Data.
Subject matter and duration of the Processing of the Personal Data
The subject matter and duration of the Processing of the Personal Data are set out in the Contract.
The nature and purpose of the Processing of the Personal Data
The Supplier shall process Personal Data in order to provide the goods and/or services to Customer.
The types of the Personal Data to be Processed
Personal data Processed may include, but is not limited to, the name, identification number(s), location data, online identifier(s) or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of a Data Subject.
The categories of Data Subject to whom the Personal Data relates
Personal Data will be processed in relation to Customer’s end customers and/or staff and/or suppliers, their customers and/or staff.
The obligations and rights of the Data Controller and Data Controller Affiliates
The obligations and rights of the Data Controller and the Data Controller Affiliates are set out in the Contract.