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Rated ExcellentTerms and Conditions for the Supply of Goods and Services (Medical Devices)
[PRO CUSTOMER]
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 Definitions
The following definitions apply in these Conditions:
| “Account Set Up Form” | means the Customer form completed by the Supplier with all necessary vendor information. |
| “Applicable Laws” | means all applicable laws, statutes, regulations and codes from time to time in force. |
| “Business Day” | means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
| “Business Hours” | means the period from 9.00 am to 5.00 pm on any Business Day. |
| “Change of Control” | means the obtaining of control of a Party by any person or group of persons acting in concert who or which did not previously exercise control of that Party. |
| “Change Order” | has the meaning given in Clause 7.1. |
| “Commencement Date” | has the meaning given in Clause 2.2. |
| “Conditions” | these terms and conditions as amended from time to time in accordance with Clause 26. |
| “Confidential Information” |
means all confidential information (however recorded or preserved) disclosed by a Party or its Representatives to the other Party and that Party's Representatives whether before or after the date of this Contract in connection with the supply of goods and services, classed as Medical Devices, including but not limited to: (a) the existence and terms of this Contract; (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the Group to which the disclosing party belongs); and (c) any information developed by the Parties in the course of carrying out this Contract. |
| “Container” | means the freight container used by the Supplier to transport the Goods to the Customer. |
| “Contract” | the contract between the Customer and the Supplier for the supply of Goods and / or Services in accordance with these Conditions and the Order. |
| “Control” |
means: (i) the power (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) to appoint and/or remove all or such members of the board of directors or other governing body of a Party as are able to cast a majority of the votes capable of being cast by the members of that board or body on all, or substantially all, matters, or otherwise to control or have the power to control the policies and affairs of that Party (and for the purposes of determining whether the power to appoint or remove directors exists the provisions of section 1159 of the Companies Act 2006 shall apply); and/or (ii) the holding and/or possession of the beneficial interest in and/or the ability to exercise the voting rights applicable to shares or other securities in any Party (whether directly or by means of holding such interests in one or more other persons) which confer in aggregate on the holders thereof more than fifty percent of the total voting rights exercisable at general meetings of that Party on all, or substantially all, matters. |
| “Customer” |
means CareCo (UK) Limited, registered in England and Wales with company number 06831125 and who purchases Goods and / or Services from the Supplier. |
| “Customer Materials” |
means all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier. |
| “Declaration of Conformity” |
means the legal document that declares that a product with UK Conformity Assessment (“UKCA”) marking conforms to the relevant UK requirements. |
| “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). |
| “Delivery Location” |
has the meaning given in Clause 4.2.2. |
| “Force Majeure Event” |
means any circumstance not within a Party's reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the Party seeking to rely on this clause, or companies in the same group as that Party); and (h) interruption or failure of utility service. |
| “Goods” |
means the goods (or any part of them) set out in the Order. |
| “Goods Specification” |
means any specification for the Goods, including any related plans and drawings, that is agreed in writing in advance by the Customer and the Supplier. |
| “Group” |
means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. |
| “Incoterm(s) |
means the set of commercial terms developed by the International Chamber of Commerce (ICC) and used by businesses engaged in trade to specify which party, buyer or seller, is responsible for each task in the sale and delivery of goods. |
| “Intellectual Property Rights” or “IPR” |
means rights to inventions, patents, designs, utility models, whether registered or not, copyright, moral rights, trademarks, business names and domain names, database rights, rights to use and protect the confidentiality of Confidential Information (including trade secrets and know-how), software, discoveries, improvements, concepts, models, drawings, secret formulae and processes 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 the United Kingdom or any part of the world and the term “Intellectual Property” shall be construed accordingly. |
| “Mandatory Policies” |
means the Customer's business policies and codes listed in Schedule 1. |
| “Medical Device(s)” |
has the meaning given to it in section 2(1) of the Medical Devices Regulations 2002 (SI 2002/618) (UKMDR) and may form part of the Goods. |
| “MHRA” |
has the meaning given in Clause 3.1.5.1. |
| “Order” |
the Customer's order for the supply of Goods and/or Services as set out in the Customer's purchase order form or overleaf, as the case may be. |
| “Party” |
means either the Customer or the Supplier and together shall be referred to as the “Parties”. |
| “Representatives” |
means, in relation to a Party, its employees, officers, contractors, subcontractors, representatives and advisers. |
| “Responsible Person” |
has the meaning given in Clause 3.1.5.3. |
| “Services” |
the services, including any Deliverables, to be provided by the Supplier to the Customer under the Contract, as set out in the Service Specification. |
| “Service Specification” |
the description or specification of the Services agreed in writing in advance by the Customer and the Supplier. |
| “Supplier” |
the company or entity from whom the Customer purchases the Goods and/or Services. |
| “Third Party” |
means any person, government, firm, corporation, unincorporated association, authority, agency or legal entity not a party to this Contract. |
| [“UK GDPR” |
has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018. |
| “VAT” |
means value added tax or any equivalent tax chargeable in the UK or elsewhere. |
1.2 Interpretation
1.2.1 In the Contract, except where the context requires otherwise:
1.2.1.1 references to statutory provisions are references to those provisions as in force at the date of this Contract;
1.2.1.2 words denoting any gender include all genders and words denoting the singular include the plural and vice versa;
1.2.1.3 references to clauses, sub-clauses and schedules are to those in this Contract; and
1.2.1.4 headings are for convenience only and do not affect the construction of this Contract;
1.2.2 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.
1.2.3 A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing written acceptance of the Order; or
2.2.2 any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 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.
2.4 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.
2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. SUPPLY OF GOODS
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with their description, the Customer’s instructions relating to the Customer’s labelling, branding and packaging and any applicable Goods Specification;
3.1.2 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;
3.1.3 where they are manufactured products, be free from defects in design, materials and workmanship and remain so for twelve (12) months after delivery or for the period as detailed in the Supplier’s user information and agreed by the Customer; and
3.1.4 comply with all Applicable Laws, regulatory policies, guidelines or industry codes relating to the manufacture, labelling, packaging, storage, handling, provision and delivery of the Goods and with the Mandatory Policies.
3.1.5 in relation to Medical Devices:
3.1.5.1 be registered with the Medicines and Healthcare Products Regulatory Agency (“MHRA”) prior to the first delivery of the Goods to the Customer;
3.1.5.2 provide a unique device identification (“UDI”) in addition to the Declaration of Conformity; and
3.1.5.3 if the Supplier is based outside of the United Kingdom, have a United Kingdom and European Union representative appointed (“Responsible Person”) to assume the responsibilities of the Supplier in terms of registering the Medical Device with the MHRA and the Responsible Person shall ensure their details are communicated to the Customer prior to the first delivery of the Goods to the Customer;
3.1.5.4 subject to Clause 3.1.5.3, the Supplier shall identify and acknowledge the Customer as the importer of the Medical Devices not the Responsible Person, and as such the Responsible Person shall provide the MHRA with the Customer details, including their place of business in Great Britain.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 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.
3.4 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.
3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition subject to INCOTERMS 2020 Edition, DAP Destination, where the destination is the delivery address specified on the Order unless otherwise agreed in writing between the Parties;
4.1.2 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
4.1.3 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.
4.2 The Supplier shall deliver the Goods:
4.2.1 on the date specified in the Order or, if no such date is specified, then within 182 days of the date of the Order;
4.2.2 to the Customer's premises at 1 Turing Court, Great Notley, Braintree, Essex, CM77 7AT, UK or such other location as is set out in the Order or as instructed by the Customer before delivery (“Delivery Location”); and
4.2.3 during the Customer's normal hours of business, or as instructed by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Subject to Clause 4.5, if the Supplier:
4.4.1 delivers less than 95% of the quantity of Goods ordered, the Customer may reject the Goods; or
4.4.2 delivers more than 105% of the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods,
and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.5 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 8.1.
4.6 Title and risk in the Goods shall pass to the Customer on completion of delivery in accordance with the specified Incoterm.
5. ACCEPTANCE
Unless otherwise provided for in the Contract, acceptance shall take place within one (1) calendar month of delivery at the Customer’s place of business as specified in the Order (the “Acceptance Period”). If during the Acceptance Period the Goods and/or Services are found not to be in accordance with the Contract then the Customer may reject the Goods and/or Services and at the Supplier’s cost, either return the Goods to the Supplier or obtain re-performance of the Services by the Supplier. If after the Acceptance Period the Customer has not rejected the Goods and/or Services, then the Customer shall be deemed to have accepted the Goods and/or Services.
6. SUPPLY OF SERVICES
6.1 The Supplier shall from the date set in the Order and for the duration of the Contract provide the Services to the Customer in accordance with the terms of the Contract.
6.2 The Supplier shall meet any performance dates for the Services specified in the Order.
6.3 In providing the Services, the Supplier shall:
6.3.1 co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
6.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
6.3.3 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;
6.3.4 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;
6.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
6.3.6 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;
6.3.7 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
6.3.8 comply with all Applicable Laws, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services, and with the Mandatory Policies;
6.3.9 observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises;
6.3.10 hold Customer Materials in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer's written instructions or authorisation;
6.3.11 not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services;
6.3.12 comply with any additional obligations as set out in the Service Specification.
7. CHANGE CONTROL
7.1 Either Party may propose changes to the scope or execution of the Goods and / or Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both Parties, effecting a Change. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
7.1.1 the Goods and / or the Services;
7.1.2 the Charges;
7.1.3 the timetable for the Goods and / or Services; and
7.1.4 any of the other terms of the relevant Goods Specification or Services Specification.
7.2 If the Customer wishes to make a Change to the Goods and / or Services:
7.2.1 it shall notify the Supplier, providing as much detail as is reasonably necessary to enable the Supplier to prepare the draft Change Order; and
7.2.2 the Supplier shall, within 3 Business Days of receiving the Customer’s request at Clause 7.2.1, provide a draft Change Order to the Customer.
7.3 If the Supplier wishes to make a change to the Goods and / or Services it shall provide a draft Change Order to the Customer.
7.4 If the Supplier submits a draft Change Order in order to comply with any applicable safety or regulatory requirements under the Applicable Laws and such changes do not affect the nature, scope of, or Charges for the Goods and / or Services, the Customer shall not unreasonably withhold or delay consent to it.
7.5 If the Parties:
7.5.1 agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Goods Specification or Services Specification; or
7.5.2 are unable to agree a Change Order, either Party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in Clause 34.
8. CUSTOMER REMEDIES
8.1 If the Supplier fails to deliver the Goods or perform the Services by the applicable dates or in the applicable time, 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:
8.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
8.1.2 to refuse to accept any delivery of the Goods and/or subsequent performance of the Services which the Supplier attempts to make;
8.1.3 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a Third Party;
8.1.4 to 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; and
8.1.5 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 or times.
8.2 If the Goods are not delivered or the Services are not performed by the applicable date or time, or both, the Customer may, if not notified formally of the delay 14 days or more in advance, at its option, claim or deduct a percentage of the price of the Goods for each week's delay in delivery of the Goods and/or claim or deduct a percentage of the price of the Services for each week's delay in performance of the Services, in each case by way of liquidated damages or service credits as follows:
| For Goods: | ||
| Amount of Delay (no. of days) | Liquidated Damages applicable | |
| Up to 7 days | Supplier to pay any and all freight forwarder cancellation fees if space allocated to the Customer is released to a Third Party | |
| 7 to 14 days |
Supplier to pay any and all freight forwarder cancellation fees if space allocated to the Customer is released to a Third Party plus liquidated damages of: - USD200 per Container provided that the Customer is given advance notice in writing of the delay; - USD1000 per Container provided that the Customer is not given advance notice in writing of the delay. |
|
| 15 to 21 days | 5% discount on the total value of Goods in the Container. | |
| 22 to 29 days | 10% discount on the total value of Goods in the Container. | |
| 30 days up to 6 months | 20% discount on the total value of Goods in the Container. | |
| More than 6 months | 100% discount on the total value of the Goods in the Container and Customer entitled to terminate the Contract. | |
| For Services: | ||
| Amount of Delay (hours / no. of days) | Liquidated damages / service credits applicable | |
| For each day's delay in performing the Services | The Supplier shall pay the Customer, 5% of the Customer’s payments due under the Order to the Supplier. |
until the earlier of delivery of the Goods or performance of the Services, as applicable, or termination or abandonment of the Contract by the Customer, up to a maximum of 100% of the total price of the Goods (in respect of late delivery of the Goods) and up to a maximum of 100% of the total price of the Services (in respect of late performance of the Services). If the Customer exercises its rights in respect of late delivery under this Clause 8.2 it shall not be entitled to any of the remedies set out in Clause 8.1.2 to Clause 8.1.5 in respect of the late delivery of the Goods. If the Customer exercises its rights in respect of late performance under this Clause 8.2 it shall not be entitled to any of the remedies set out in Clause 8.1.2 to Clause 8.1.5 in respect of the late performance of the Services.
8.3 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 and remedies, whether or not it has accepted the Goods:
8.3.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
8.3.2 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;
8.3.3 if at any time during twelve (12) months after acceptance of the Goods, it is discovered that the Goods or any part thereof are defective in any way or do not conform with the warranties contained in Clause 3.1.3 then the Customer shall require the Supplier to promptly and at its own expense repair or replace the defective Goods or provide a full refund of the price of the rejected Goods (if paid);
8.3.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
8.3.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a Third Party; and
8.3.6 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.
8.4 If the Supplier has supplied Services that do not comply with the requirements of Clause 6.3.4, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights and remedies:
8.4.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
8.4.2 to return the Deliverables to the Supplier at the Supplier's own risk and expense;
8.4.3 if it is discovered that the Services or any part thereof are defective in any way or do not conform with the warranties contained in Clause 6.3.4 then the Customer shall require the Supplier to promptly and at its own expense re-perform the Services, or provide a full refund of the price paid for the Services (if paid);
8.4.4 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
8.4.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute services or deliverables from a Third Party; and
8.4.6 to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier's failure to comply with Clause 6.3.4.
8.5 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods provided by the Supplier.
8.6 The liability of the Supplier for breach of the warranty in Clause 3.1.3 shall be limited to the obligation of the Supplier to repair or replace, free of charge, the faulty or defective Goods provided that:
8.6.1 the Customer shall notify the Supplier of such failure or defect and the nature of the defect within a reasonable period of time of the defect or failure becoming apparent and such notice to the Supplier shall contain a description of how the defect manifests itself; and
8.6.2 on the Supplier's request, the faulty or defective Goods are promptly returned to the Supplier, at the Supplier’s expense and in accordance with Clause 8.7. Any repair of Goods shall be effected at the Supplier’s place of business unless the Parties agree that the defective Goods shall be repaired at the Customer’s place of business or the provisions of Clause 8.11 apply.
8.7 The Customer shall obtain the prior written agreement of the Supplier if it wishes to return the Goods for any reason. Without prejudice to the Customer’s rights under this Agreement, if the Supplier does not:
8.7.1 agree to the return of the Goods; or
8.7.2 detail the arrangements for repair or replacement of the defective Goods to the Customer;
within 14 Business Days of receiving the Customer’s request at Clause 8.6.1, the Customer may deduct the amount due for the defective Goods from any sums then due, or which at any later time become due to the Supplier under the Order or under any other order the Supplier may have with the Customer.
8.8 The Supplier shall be obliged to bear the costs of dismantling and re-installation of defective Goods.
8.9 Notwithstanding Clause 8.6, the Supplier shall be liable for the cost of transportation of the defective Goods to the Supplier’s designated facility and the return of the repaired or replacement Goods to the Customer.
8.10 Defective Goods, which have been replaced by the Supplier, shall be placed at the disposal of the Supplier and title in the defective goods shall vest in the Supplier.
8.11 If the repair or re-performance of the defect cannot be delayed, the Supplier is located outside the United Kingdom and/or the Supplier has failed to remedy the defect within 14 Business Days, the Customer may undertake the repair of the Goods or re-performance of the Services itself or engage a Third Party to do so on its behalf. Any such repair undertaken by the Customer or a Third Party shall not affect the Supplier’s liability under the Contract and shall be undertaken at the Supplier’s cost.
8.12 The warranty at Clause 3.1.3 does not extend to any Goods:
8.12.1 which have been altered, modified, maintained or tampered with after delivery other than by the Supplier or with the Supplier's prior written approval; or
8.12.2 which have been damaged through fair wear and tear or through negligence, damage, accident or misuse, other than on the part of the Supplier.
8.13 The warranty in Clause 3.1.3 shall extend to any substituted or remedial services and/or repaired or replacement goods provided by the Supplier or any part of them replaced, reperformed or repaired in accordance with Clause 8.3.3 or Clause 8.4.3 so that the warranty shall continue for twelve (12) calendar months from the date of acceptance by the Customer of such replaced, reperformed or repaired item of the Goods or Services.
8.14 If a breach of warranty by the Supplier causes any of the Goods or Services not to be available for the Customer’s use within the warranty period for the Goods or Services then the warranty period for the Goods or Services shall be extended by the period during which they were not available for use by the Customer.
8.15 The Supplier agrees that all warranties attaching to the Goods or Services shall be capable of being assigned to a customer of the Customer or other user by the Customer without prior written notice to the Supplier.
8.16 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.
9. CUSTOMER OBLIGATIONS
9.1 The Customer shall:
9.1.1 provide the Supplier with reasonable access at reasonable times to the Customer's premises for the purpose of providing the Services or Goods and;
9.1.2 provide such necessary information for the provision of the Services or Goods as the Supplier may reasonably request.
9.2 Where appropriate, in relation to Medical Devices, the Customer and Supplier shall enter into a separate reseller or distribution agreement (as appropriate) and the Customer, as the recognised importer shall:
9.2.1 provide a translation into English of the information supplied by the Supplier for the purpose of making the Medical Devices available in Great Britain (without affecting the integrity and detail of the information provided by the Supplier);
9.2.2 change the size and/or presentation of the outer packaging of a Medical Device that has already been placed on the market without affecting the integrity of the Medical Device itself;
9.2.3 affix their brand name or trademark on the labelling with the agreement of the Supplier and ensure the Supplier is identified on the labelling and packaging;
9.2.4 stipulate clearly who the Medical Device is ‘imported/distributed by’ and ‘manufactured by’ on the packaging and labelling;
9.2.5 not change the intended purpose of the Medical Device or modify the Medical Device or its packaging in such a way that its compliance with the Applicable Laws is affected.
9.3 Subject to Clause 3.1.5, where the Goods provided by the Supplier to the Customer are Medical Devices, the Customer shall, as importer and distributor of the Goods, inform the Responsible Person of their intention to import a Medical Device.
10. CHARGES AND PAYMENT
10.1 The price for the Goods:
10.1.1 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
10.1.2 shall be inclusive of the costs of packaging, insurance and carriage of the Goods subject to the applicable Incoterm, as referenced in the Order. No extra charges shall be effective unless agreed in writing and signed by the Customer.
10.2 The charges for the Services:
10.2.1 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; and
10.2.2 unless otherwise agreed in writing by the Customer, shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
10.3 The Customer will pay the Supplier for all Goods and Services as detailed in Clause 10.4 unless specified otherwise on the front of the Order after the last of the following to occur:
10.3.1 the Supplier has made physical delivery of the Goods as detailed in Clause 4 accompanied by the appropriate paperwork and/or has completed the Services;
10.3.2 the Customer has accepted the Goods and/or Services in accordance with Clause 5; and/or
10.3.3 the Customer is in receipt of a valid invoice.
Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including the relevant Order number.
10.4 In consideration of the supply of Goods and/or the Services by the Supplier, the Customer shall pay each invoice submitted by the Supplier:
10.4.1 within the suppliers payment terms of a correctly rendered invoice; and
10.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier.
10.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of 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.
10.6 If a Party fails to make any payment due to the other Party 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 10.6 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%. 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 thirty (30) days after the dispute is resolved] until payment.
10.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and shall allow the Customer to inspect such records at all reasonable times on request.
10.8 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. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. 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.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by the Supplier.
11.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables.
11.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer.
11.4 All Customer Materials are and shall remain the exclusive property of the Customer.
12. INDEMNITY
12.1 The Supplier shall indemnify the Customer 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:
12.1.1 any claim brought 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 the receipt, use or supply of the Services (excluding the Customer Materials); and
12.1.2 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
12.1.3 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.
12.2 This Clause 12 shall survive termination of the Contract.
13. COMPLIANCE WITH RELEVANT LAWS AND POLICIES
13.1 In performing its obligations under the Contract, the Supplier shall comply with:
13.1.1 all Applicable Laws; and
13.1.2 the Mandatory Policies.
14. DATA PROTECTION
14.1 The following definitions apply in this Clause 14:
14.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
14.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a Party.
14.1.3 Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
14.2 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 14is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Legislation.
14.3 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor. Schedule 1, Data and Privacy Policy] sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject.
14.4 Without prejudice to the generality of Clause 14.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
14.5 Without prejudice to the generality of Clause 14.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
14.5.1 process that Personal Data only on the documented written instructions of the Customer which are set out in Schedule 1, Data and Privacy Policy unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
14.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
14.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
14.5.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
14.5.4.1 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
14.5.4.2 the Data Subject has enforceable rights and effective legal remedies;
14.5.4.3 the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
14.5.4.4 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
14.5.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
14.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
14.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
14.5.8 maintain complete and accurate records and information to demonstrate its compliance with this Clause 14.
14.6 The Customer does not consent to the Supplier appointing any Third Party processor of Personal Data under the Contract.
15. WARRANTIES
15.1 Each Party warrants that:
15.1.1 it has full power, authority, capability and resources to carry out the actions contemplated under this Contract;
15.1.2 its entry into and performance under the terms of this Contract will not infringe the Intellectual Property Rights of any Third Party or cause it to be in breach of any obligations to a Third Party; and
15.1.3 so far as it is aware, all information, data and materials provided by it under this Contract will be accurate and complete in all material respects, and it is entitled to provide the same to the other without recourse to any Third Party.
15.2 Except as expressly provided in this Contract, there are no conditions, warranties or other terms binding on the Parties with respect to the actions contemplated by this Contract. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this Contract, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded by this Contract.
16. INSURANCE
During the term of the Contract and for a period of seven (7) years thereafter, 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, 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.
17. LIMITATION OF LIABILITY
17.1 References to liability in this Clause 17 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
17.2 Neither Party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
17.3 Nothing in this Clause 17 shall limit the Customer's payment obligations under the Contract.
17.4 Nothing in this Contract shall limit the Supplier's liability under Clause 12 (Indemnity).
17.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
17.5.1 death or personal injury caused by negligence;
17.5.2 fraud or fraudulent misrepresentation; and
17.5.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
17.6 Subject to Clause 17.2 (No limitation in respect of deliberate default), Clause 17.4 (No limitation for Third Party IPR Infringement) and Clause 17.5 (Liabilities which cannot legally be limited), the Supplier's total liability to the Customer:
17.6.1 for damage to property caused by the negligence of its employees and agents in connection with this Contract shall not exceed £5,000,000 for any one event or series of connected events;
17.6.2 for all other loss or damage which does not fall within Clause 17.6.1 or Clause 17.6.2 shall not exceed120% of the Contract value.
17.7 Subject to Clause 17.2 (No limitation in respect of deliberate default) and Clause 17.5 (Liabilities which cannot legally be limited), the Customer's total liability to the Supplier:
17.7.1 for damage to property caused by the negligence of its employees and agents in connection with this Contract shall not exceed £500,000 for any one event or series of connected events;
17.7.2 for loss arising from the Customer's failure to comply with its data processing obligations under Clause 12 (Data protection) shall not exceed £500,000; and
17.7.3 for all other loss or damage which does not fall within Clause 17.7.1 or Clause 17.7.2 shall not exceed 100% of the Order value.
17.8 Subject Clause 17.2 (No limitation in respect of deliberate default), Clause 17.3 (No limitation of Customer's payment obligations) and Clause 17.5 (Liabilities which cannot legally be limited), this Clause 17.8 sets out the types of loss that are wholly excluded:
17.8.1 loss of profits;
17.8.2 loss of sales or business;
17.8.3 loss of agreements or contracts;
17.8.4 loss of anticipated savings;
17.8.5 loss of use or corruption of software, data or information;
17.8.6 loss of or damage to goodwill; and
17.8.7 indirect or consequential loss.
17.9 The Supplier has given commitments as to compliance of the Services with relevant specifications in Clause 6. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
17.10 This Clause 17 shall survive termination of the Contract.
18. TERMINATION
18.1 Without limiting or 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:
18.1.1 the other Party commits a material breach of any term of the Contract which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a period of fourteen (14) days of that Party being notified in writing to do so;
18.1.2 the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
18.1.3 the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
18.1.4 the other Party'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.
18.2 Without limiting or affecting any other right or remedy available to it, the Customer may terminate the Contract:
18.2.1 with immediate effect by giving written notice to the Supplier if:
18.2.1.1 there is a Change of Control of the Supplier; or
18.2.1.2 the Supplier commits a breach of Clause 13.
19. CONSEQUENCES OF TERMINATION
19.1 On termination or expiry of the Contract for any reason, 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 to the Customer, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
19.2 Termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
19.3 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.
20. FORCE MAJEURE
20.1 Provided it has complied with Clause 20.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
20.2 The corresponding obligations of the other Party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
20.3 The Affected Party shall:
20.3.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than seven (7) days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
20.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
20.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than eight (8) weeks, the Party not affected by the Force Majeure Event may terminate this Contract by giving four (4) weeks' written notice to the Affected Party.
21. ASSIGNMENT AND OTHER DEALINGS
21.1 The Customer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
21.2 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.
21.3 The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
22. CHANGE OF CONTROL
22.1 In the event that there is a Change of Control in relation to either Party, such Party shall to the extent it is permitted to do so by law promptly notify the other Party, together with relevant details, including the identity of the members or group of persons who or which have obtained control of such Party and the actual or potential impacts of such Change of Control on such Party’s obligations under this Contract, including any perceived, actual or potential conflict of interest resulting from such Change of Control.
22.2 The other Party shall be entitled, in its absolute discretion, to give notice of termination of this Contract without incurring any liability (or any rights accruing) to the Party which is the subject of the Change of Control where the Change of Control is materially adverse to the Contract and, following good faith discussions to explore whether any steps could be taken to eliminate or reduce the adverse consequences identified, no reasonable way forward to preserve the participation of the Party that has undergone such Change of Control has been identified or where identified the Party that has undergone the Change of Control fails or refuses to implement the action identified. No Change of Control of a Party in the context of a corporate re-organisation undertaken on a solvent basis, shall give rise to any right for the other Party to give notice of termination without incurring any liability to the Party that has undergone the Change of Control.
23. CONFIDENTIALITY
23.1 Neither Party shall at any time, and for a period of [two (2)] years after termination or expiry of the Contract, disclose to any person any Confidential Information, except as permitted by Clause 23.2.
23.2 Each Party may disclose the other Party's Confidential Information:
23.2.1 to those of its Representatives 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 Representatives, to whom it discloses the other Party's Confidential Information comply with this Clause 23; and
23.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
23.3 Neither Party shall use the other Party's Confidential Information for any purpose other than to perform its obligations under the Contract.
24. NON SOLICITATION
24.1 Each Party agrees that during the term and for six (6) months after the end of the Contract it shall not directly or indirectly solicit, or offer employment or engagement to, any of the other Party's staff who is at the time of such action or was during a period of six (6) months immediately preceding such action directly involved in the carrying out of any obligations under this Contract without the other Party's prior written agreement. This Clause shall not apply to recruitment achieved through specific locally or nationally placed advertisements where there has been no direct or targeted contact with the individual concerned or through an unsolicited approach by the individual to that Party.
24.2 If either Party commits any breach of Clause 24.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one (1) year's basic salary or the annual fee that was payable by the claiming party to that employee, consultant or subcontractor plus the recruitment costs incurred by the claiming party in replacing such person.
25. ENTIRE AGREEMENT
The Contract constitutes the complete and entire agreement between the Parties on the subject matter of this Contract and (except for any confidentiality agreement) supersedes and extinguishes all promises, assurances, warranties, representations, discussions, proposals, understandings or previous agreements between them, whether oral or written, relating to such subject matter.
26. VARIATION
Except as set out in these Conditions, no variation or modification of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
27. WAIVER
No failure to exercise and no delay in exercising on the part of either Party any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude the enforcement of any other right, power or privilege nor shall the waiver of any breach of any provision herein be taken or held to be a waiver of the provision itself. Any waiver to be effective must be in writing.
28. SEVERANCE
28.1 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 this Contract.
28.2 If any provision or part-provision of this Contract deleted under Clause 28.1 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.
29. RELATIONSHIP OF THE PARTIES
29.1 Nothing in this Contract shall be taken to create a joint venture, partnership or other similar arrangement; the Parties shall at all times stand in relation to each other as independent contractors. Neither Party is nor may hold itself out to any Third Party as being the agent of the other.
29.2 The Parties undertake at all times during this Contract to act reasonably and in good faith to one another.
30. SURVIVAL
30.1 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
30.2 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
31. NOTICES
31.1 Any notice or other communication given to a Party under or in connection with the Contract shall be in writing and shall be:
31.1.1 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
31.1.2 sent by email to the address specified in:
31.1.2.1 For use by the Customer: the Account Set Up Form;
31.1.2.2 For use by the Supplier: the Order.
31.2 Any notice or communication shall be deemed to have been received:
31.2.1 if delivered by hand, at the time the notice is left at the proper address;
31.2.2 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; or
31.2.3 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. In this Clause 31.2.3, 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.
31.3 This Clause 31 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.
32. THIRD PARTY RIGHTS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
33. 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.
34. DISPUTE RESOLUTION
34.1 If a dispute or difference arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then except as expressly provided in this Agreement, the Dispute shall be referred to two (2) representatives: one (1) representative of Supplier and one (1) representative of CareCo, for negotiation and settlement discussions.
34.2 If the representatives referred to in Clause 33.1 are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the Dispute shall be referred to a mediator mutually agreed upon by the Parties for non-binding mediation. The costs of the mediation shall be borne equally by the Parties.
34.3 Unless otherwise agreed between the Parties, the mediation shall be held within ninety (90) days of the date of conclusion of negotiations between the representatives of the Parties under Clause 33.2.
34.4 The commencement of mediation shall not prevent the Parties commencing or continuing arbitration in relation to the Dispute under Clause 33.5 which clause shall apply at all times.
34.5 If the Dispute is not resolved through mediation, or either Party fails to participate or to continue to participate in the mediation before the expiration of the period in Clause 33.3, or the mediation terminates before the expiration of the period in Clause 33.3, the Dispute shall be finally resolved by arbitration proceedings in accordance with Clause 33.6(Arbitration) of this Agreement.
34.6 Any dispute, difference or claim arising out of or in connection with this Agreement (including any dispute as to the existence, scope, validity or termination of this Agreement or of this Clause 33) shall be finally resolved by arbitration at the London Court of International Arbitration (“LCIA”) in London, England conducted in the English language by a sole arbitrator appointed pursuant to the LCIA Arbitration Rules which are deemed to be incorporated by reference into this Clause.
34.7 Unless the Parties expressly agree in writing to the contrary, the Parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain - save and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.
34.8 Each of the Parties irrevocably agrees that any order or award made by the arbitrator pursuant to the terms of Clause 33.6 shall be conclusive and binding upon it and may be enforced in the courts of any jurisdiction, insofar as not otherwise permitted by treaty or convention, by suit on the order or award or in any other manner provided by law and the Parties agree to exclude any right of application or appeal to the English Courts in connection with any question of law arising in the course of the arbitration or with respect to any such award.
39.9 Without prejudice to any other rights or remedies that a Party may have, each Party acknowledges and agrees that damages would not be an adequate remedy for any breach of this Agreement and accordingly each Party shall be entitled to seek in any court of competent jurisdiction without proof of special damage the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this Agreement.
SCHEDULE 1
MANDATORY POLICIES
The Mandatory Policies are:
1.1 Modern Slavery and Human Trafficking Policy.
1.2 Anti-Bribery and Anti-Corruption Policy.
1.3 Data and Privacy Policy.
1.4 Customer’s Supplier Code of Conduct.