TERMS & CONDITIONS

The customer’s attention is drawn in particular to the provisions of clause 9.

1             Interpretation

1.1           Definitions:

Business Day

a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Conditions

the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.

Contract

the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer

the person or firm who purchases the Goods from the Supplier.

Delivery Location

has the meaning given in clause 5.2.

Force Majeure Event

an event, circumstance or cause beyond a party’s reasonable control.

Goods

the goods (or any part of them) set out in the Order.

Manufacturer

Healgen Scientific LLC and BHA-Medical Limited (Co. No. 12045246) who is the authorised representative in the United Kingdom for the Goods.

Order

the Customer’s order for the Goods, as set out in the Customer’s written acceptance of the Supplier’s quotation.

Software

the selected software applications made available to the Customer by Catanae Innovation PLC to enable the Customer to use the Goods in accordance with the purposes for which they are supplied for.

Supplier

Pharmore Global Limited (registered in England and Wales with company number 09165154).

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 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. 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 email.

2             Basis of contract

2.1           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 law, trade custom, practice or course of dealing.

2.2           The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.

2.3           The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4           The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5           A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.

3             Goods

3.1           The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

4             Software

4.1           The Supplier is a non-exclusive licensee of the Software and under the terms of its license, the Supplier is authorised to grant the Customer access to the Software for the purposes of using the Goods provided under an Order.  

4.2           To the extent that the Goods also require access to and use of the Software the Supplier shall use reasonable endeavours to procure the Customer’s access to and use of the Catenae Software however the Customer’s use of the Software is subject to the terms under which Catanae Innovation PLC make the Software available to the Customer.  The Supplier expressly disclaims any and all warranties and liabilities howsoever arising in connection with the Customer’s use of the Software.    

4.3           The Customer agrees that any use made by it of the Software is subject to the terms under which the proprietor of the Software allows the Customer to use the Software and the Customer warrants to the Supplier that it shall not breach any such terms relating to its use of the Software.

4.4           The parties agree that the Software is provided by Catanae Innovation PLC and that in the event of any actual or potential claim howsoever arising in connection with the Customer’s use of the Software, the Customer’s remedy shall be against Catanae Innovation PLC and not the Supplier provided any claim is not subject to the Supplier’s default or  a breach by the Supplier of its obligations under Schedule 1.

4.5           Each Party shall comply with Schedule 1 (Data Protection).

5             Delivery

5.1           The Supplier shall ensure that:

5.1.1            each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the contract number, where applicable, 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

5.1.2            if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.

5.2           The Supplier shall deliver or shall procure the delivery of the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

5.3           Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

5.4           Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.5           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 equal 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 a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.6           Provided the Supplier is ready, willing and able to deliver the Goods, if the Customer fails to take delivery of the Goods within 24 hours 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 the Supplier’s failure to comply with its obligations under the Contract:

5.6.1            delivery of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and

5.6.2            the Supplier shall, in its sole discretion, store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

5.7           If five Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

5.8           The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

6             Quality

6.1           The Supplier warrants that on delivery only, the Goods shall, as far as the Supplier is aware:

6.1.1            conform with their description; and

6.1.2            be free from material defects in design, material and workmanship; and

6.1.3            be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

6.2           Subject to clause 6.3, provided:

6.2.1            the Customer gives notice in writing to the Supplier together with evidence, within three Business Days of delivery that some or all of the Goods do not comply with the warranty set out in clause 6.1;

6.2.2            the Supplier is given a reasonable opportunity of examining such Goods and verifying the information supplied by the Customer under clause 6.2.1, which the Supplier shall exercise in its sole discretion; and

6.2.3            the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,

the Supplier shall, in its sole discretion, replace the defective Goods, or refund the price of the defective Goods in full.  The remedies available to the Customer under this clause 6.2 shall be the Customer’s exclusive remedies in respect of any non-compliance to the warranty provided under clause 6.1.

6.3           The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:

6.3.1            the Customer fails to comply with any instructions for use provided together with the Products by any packaging insert or information supplied by the Manufacturer;

6.3.2            the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;

6.3.3            the Customer fails or in the Supplier’s reasonable opinion the Customer fails to follow the Supplier’s or Manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice including without limitation standards for pharmacy professionals and registered pharmacies in the UK as issued by the General Pharmaceutical Council from time to time;

6.3.4            the Customer alters or repairs such Goods without the written consent of the Supplier;

6.3.5            the defect arises as a result of wilful damage, negligence, inappropriate storage conditions or is used in any way other than as prescribed by the Manufacturer; or

6.3.6            the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

6.4           Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.

6.5           The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

6.6           These Conditions shall apply to any replacement Goods supplied by the Supplier.

7             Title and risk

7.1           The risk in the Goods shall pass to the Customer on completion of delivery.

7.2           Title to the Goods shall pass to the Customer when the Supplier receives payment in full (in cash or cleared funds) for the Goods.  

7.3           Risk in the Goods shall pass to the Customer at the time when delivery is completed under clause 4.3.

8             Price and payment

8.1           The price of 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 as at the date of delivery.

8.2           The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

8.2.1            any factor beyond the Supplier’s control (including any change in government guidance relating to the Goods, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

8.2.2            any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

8.2.3            any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

8.3           The price of the Goods:

8.3.1            excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and

8.3.2            excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

8.4           The Customer shall invoice the Customer for the Goods in advance of delivery of them.

8.5           The Customer shall pay each invoice submitted by the Supplier:

8.5.1            promptly and within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

8.5.2            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.

8.6           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 10 (Termination), 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 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

8.7           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).

9             Limitation of liability

9.1           The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.2           Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

9.2.1            death or personal injury caused by negligence;

9.2.2            fraud or fraudulent misrepresentation;

9.2.3            breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

9.2.4            defective products under the Consumer Protection Act 1987.

9.3           Subject to clause 9.2, the Supplier’s total liability to the Customer in respect of an Order shall not exceed the total value of the Goods supplied to the Customer under that Order.

9.4           Subject to clause 9.2, the following types of loss are wholly excluded by the Supplier:

9.4.1            loss of profits;

9.4.2            loss of sales or business;

9.4.3            loss of agreements or contracts;

9.4.4            loss of anticipated savings;

9.4.5            loss of use or corruption of software, data or information;

9.4.6            loss of or damage to goodwill or reputation; and

9.4.7            indirect or consequential loss.

9.5           This clause 9 shall survive termination of the Contract.

9.6           The Customer shall indemnify the Supplier (calculated on a full indemnity basis)  against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by the Supplier arising out of or in connection with (i) the Customer’s breach or negligent performance or non-performance of this Contract; (ii) the Customer’s use of the Software; (iii)  any actual or potential claim made against the Supplier by a third party arising out of or in connection with the Customer making any of the Goods available to any person; and (iv) any actual or potential claim made by a third party arising out of or in connection with a breach by it of any of its obligations under Schedule 1.

10           Termination

10.1         Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

10.1.1          the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

10.1.2          the Customer 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), obtaining a moratorium, 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;

10.1.3          the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

10.1.4          the Customer’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.

10.2         Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.1.2 to clause 10.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10.3         Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

10.4         On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of 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.

10.5         Termination or expiry of the Contract, however arising, shall not affect any of 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.

10.6         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.

11           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 a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate the Contract by giving 4 week’s written notice to the affected party.

12           General

12.1         Assignment and other dealings.

12.1.1          The Supplier 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.

12.1.2          The Customer 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 Supplier.

12.2         Entire agreement.

12.2.1          This 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.

12.2.2          Each party agrees that it 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 misstatement based on any statement in the Contract.

12.3         Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.4         Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.5         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 11.6 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.

12.6         Notices.

12.6.1          Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(a)           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

(b)           sent by email to the address specified in the Order or as notified by one party to the other from time to time.

12.6.2          Any notice shall be deemed to have been received:

(a)           if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b)           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; and

(c)           if sent by email, at 9.00 am on the next Business Day after such email has been successfully transmitted and as may be evidenced by the production of a ‘read’ receipt of successful transmission notification.

12.6.3          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.

12.7         Third party rights.

12.7.1          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.

12.8         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.

12.9         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 this Contract or its subject matter or formation.

 

 

Schedule 1

DATA PROTECTION

 

  1. DEFINITIONS

 

“Data Controller”

Has the meaning given to ‘Data Controller’, or ‘Controller’ as appropriate, in the Data Protection Laws;

“Data Breach”

Means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;

“Data Processor”

Has the meaning given to ‘Data Processor’, or ‘Processor’ as appropriate, in the Data Protection Laws;

“Data Protection Laws”

Means all applicable privacy and data protection laws including the GDPR and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

“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, and repealing directive 95/46/EC as updated, superseded or repealed from the time to time;

“Personal Data”

Has the meaning given in the Data Protection Laws.

 

 

  1. COMPLIANCE WITH DATA PROTECTION LAWS

 

  • The Parties shall each comply with their respective obligations under the applicable Data Protection Laws.

 

  1. DATA PROCESSING OBLIGATIONS

 

  • In respect of any Personal Data to be processed by a party acting as Data Processor pursuant to this Contract for which the other party is Data Controller, the Data Processor shall:

 

  • provide appropriate technical and organisational measures in such a manner as is designed to ensure the protection of the rights of the data subject and to ensure a level of security appropriate to the risk;

 

  • not engage any sub-processor, other than an Authorised Sub-Processor as set out in paragraph 1 of this Schedule, without the prior specific or general written authorisation of the Data Controller (and in the case of general written authorisation, the Data Processor shall inform the Data Controller of any intended changes concerning the addition or replacement of other processors, thereby giving the Data Controller the opportunity to object to such changes);

 

  • ensure that terms similar to those in this Schedule are agreed with any sub-processor and that each sub-processor shall be obligated to act at all times in accordance with duties and obligations similar to those of the Data Processor under this Schedule. The Data Processor shall at all times remain liable for the performance of the sub-processor’s obligations;

 

  • process that Personal Data only to perform its obligations under this Contract or other documented instructions, including those set out at 1 below, and for no other purpose save to the limited extent required by law;

 

  • on termination of this Contract, at the Data Controller’s option either return or destroy the Personal Data (including all copies of it) immediately;

 

  • ensure that all persons authorised to access the Personal Data are subject to obligations of confidentiality;

 

  • make available to the Data Controller, at the Data Controller’s cost all information necessary to demonstrate compliance with the obligations laid out in Article 28 of GDPR and this Schedule and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller; provided that, in respect of this provision the Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction infringes Data Protection Laws. Such audits and inspections to be subject to the following conditions:

 

  1. the Data Processor shall be given at least fourteen (14) days’ notice prior to and audit or inspection;

  2. audits and inspections shall take place during the normal business hours of the Data Processor as set by the Data Processor;

  3. the Data Controller and/or their mandated auditor shall, prior to carrying out an audit or inspection, agree to any reasonable non-disclosure agreement required by the Data Processor; and

  4. the Data Controller shall be liable for all costs in relation to such an audit or inspection.

 

  • taking into account the nature of the processing, at the Data Controller’s cost, provide assistance to the Data Controller, in connection with the fulfilment of the Data Controller’s obligation to respond to requests for the exercise of data subjects’ rights pursuant to Chapter III of the GDPR to the extent applicable;

 

  • at the Data Controller’s cost, provide the Data Controller with assistance in ensuring compliance with articles 32 to 36 (inclusive) of the GDPR (concerning security of processing, data breach notification, communication of a Data Breach to the data subject, data protection impact assessments, and prior consultation with supervisory authorities) to the extent applicable to the Data Controller, taking into account the nature of the processing and the information available to the Data Processor;

 

  • notify the Data Controller without undue delay on becoming aware of a Data Breach in respect of Personal Data that it processes on behalf of the Data Controller;

 

  • Where the Data Controller determines that it shall make a report or notification to any supervisory authority concerning the processing of Personal Data by the Data Processor pursuant to this Contract, the Data Controller shall provide the Data Processor with a copy of the report or notification prior to it being communicated to the supervisory authority and the Data Controller shall make any reasonable changes to the report or notification requested by the Data Processor.

 

 

  1. INTERNATIONAL DATA TRANSFERS

 

In respect of any Personal Data to be processed by a party acting as Data Processor pursuant to this Contract for which the other party is Data Controller, the Data Processor shall not transfer the Personal Data outside the UK or to an international organisation without ensuring appropriate levels of protection, including any appropriate safeguards if required, are in place for the Personal Data in accordance with the Data Protection Laws.

 

  1. DETAILS OF PROCESSING ACTIVITIES

 

  • The following table sets out the details of processing of Personal Data which the Data Processor is authorised to carry out, as required by Article 28 of GDPR:

Nature, scope and purposes for which the Personal Data shall be processed

 

 

The Customer shall provide limited personal data to the Supplier for the purposes of the Supplier passing such details to Catanae Innovation PLC who will use the personal data to set up the Customer with access to the Software.

Description of the categories of the data subjects

 

 

Individuals employed or otherwise engaged by the Customer under a contract for personal services.

Description of the categories of Personal Data

 

 

Names, telephone numbers and email addresses of individual employees or individuals engaged by the Customer under a contract for personal services.

Description of transfers of Personal Data to a country outside of the UK

 

 

None

Duration of the processing

 

 

For as long as the Supplier supplies Goods to the Customer under an Order.

Authorised Sub-Processors

 

 

The Data Controller hereby grants general authorisation for the engagement of sub-processors pursuant to paragraph 3.1.2 of this Schedule.