Supplier Terms And Conditions Goods And Services (U.K.)
- eMed Healthcare UK, Limited of 184 - 192 Drummond Street, NW1 3HP (“eMed”); and
- the supplier named on the Purchase Order (“Supplier”).
1. DEFINITIONS AND INTERPRETATION
“Affiliate” means, in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party. For the purposes of the preceding definition, “control” shall include, without limitation, the provision of management services for an entity.
“eMed Materials” means all materials, equipment, tools, drawings, specifications and data supplied by eMed to Supplier.
“Business Day” means a day (9am-5pm), other than a Saturday, Sunday or public holiday in the United Kingdom, when banks in London are open for business.
“Commencement Date” means the date specified in the Purchase Order (or, in the absence of a specified commencement date, the date of the Purchase Order).
“Contract” means, collectively, these terms and conditions and the Purchase Order.
“Deliverables” means all documents, products and materials (in any form) developed by or on behalf of Supplier as part of or in relation to the Services;
“Delivery” or “Deliver” means the completion of unloading of the Goods at the Delivery Location.
“Delivery Date” means the delivery date specified in the Purchase Order.
“Delivery Location” means the delivery location specified in the Purchase Order.
“Goods” means the goods (if any) described in the Purchase Order.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world.
“Mandatory Policies” means eMed’s Vendor Code of Conduct (as amended by eMed from time to time) and any additional policies notified by eMed to Supplier from time to time.
“Purchase Order” means a purchase order issued by eMed to Supplier to which these terms and conditions are stated to apply.
“Services” means the services (if any) described in the Purchase Order.
“Supplier IPRs” means all Intellectual Property Rights subsisting in the Deliverables, excluding any eMed Materials incorporated in them.
2. COMMENCEMENT AND TERM
This Contract shall commence on the Commencement Date and shall continue for the duration specified in the Purchase Order, unless terminated earlier under Section 8 (the “Term”).
3. SUPPLY OF GOODS
3.1 Supplier shall supply, and eMed shall purchase, the Goods in the quantity (if any) set out in the Purchase Order, in accordance with the terms and conditions of this Contract.
3.2 eMed may, at any time before dispatch, amend or cancel an order for Goods by written notice to Supplier. If eMed amends or cancels an order, eMed’s liability to Supplier shall be limited to payment to Supplier of all costs reasonably incurred by Supplier in fulfilling the order up until the date of receipt of such notice, except that eMed shall have no liability to Supplier where the amendment or cancellation results from Supplier's failure to comply with this Contract.
3.3 Supplier shall Deliver the Goods to the Delivery Location on the Delivery Date. Supplier shall pack and secure the Goods in such manner as to enable them to be Delivered in good condition.
3.4 If the Goods are not delivered on the Delivery Date, then, without limiting any other right or remedy eMed may have, eMed may:
- terminate this Contract in respect of the Goods with immediate effect; and/or
- obtain substitute goods from another supplier and recover from Supplier any costs and expenses reasonably incurred.
3.5 Supplier warrants that the Goods supplied shall:
- conform to all specifications set out in the Purchase Order;
- be of satisfactory quality and fit for any purpose held out by Supplier or made known to Supplier by eMed;
- be free from defects in design, material and workmanship for 12 months after Delivery or, for consumable products, until used for their intended purpose by eMed within their ‘use-by’ date; and
- comply with all applicable legal and regulatory requirements and generally accepted industry standards and practices.
3.6 eMed shall not be deemed to have accepted any Goods until fourteen Business Days following Delivery, or, in the case of a latent defect, following the latent defect becoming apparent.
3.7 Without limiting any other right or remedy that eMed may have at law, eMed may reject Goods which are not in conformity with this Contract, and:
- require Supplier to repair or replace the rejected Goods at Supplier's risk and expense within five Business Days (and the terms of this Contract shall apply to the repaired or replacement Goods); or
- require Supplier to repay the price of the rejected Goods in full (whether or not eMed has previously required Supplier to repair or replace the rejected Goods).
3.8 If Supplier fails to promptly repair or replace rejected Goods under Section 3.7(a), eMed may, at Supplier’s cost and without affecting eMed’s other rights under Section 3.7, obtain substitute products from a third party supplier, or have the rejected Goods repaired by a third party.
3.9 Supplier warrants to eMed that the Goods are of good title and provenance, and that Supplier has the right to supply them to eMed as provided for in this Contract.
3.10 Risk in, and title to, Goods delivered to eMed shall pass to eMed on Delivery.
4. SUPPLY OF SERVICES
4.1 Supplier shall supply the Services to eMed (and/or a eMed Affiliate nominated by eMed), in accordance with the terms and conditions of this Contract.
4.2 Supplier shall:
- perform the Services with reasonable care and skill;
- perform the Services in accordance with any standard SLAs and/or KPIs of Supplier that are applicable to the Services (unless alternative SLAs and/or KPIs are agreed in writing between the parties);
- ensure that the Deliverables, and all goods, materials, standards and techniques used in the Services are of satisfactory quality and fit for purpose; and
- take reasonable care of all eMed Materials in its possession and make them available for collection by eMed on reasonable notice and request.
5. eMed OBLIGATIONS
- co-operate with Supplier in all matters relating to the Services;
- provide, in a timely manner, such materially complete and accurate information and access to eMed premises as Supplier may reasonably require to provide the Services.
6. SUPPLIER OBLIGATIONS
6.1 In performing its obligations under this Contract, Supplier shall comply with:
- all applicable laws, statutes, regulations and codes from time to time in force; and
- the Mandatory Policies.
6.2 eMed may terminate this Contract with immediate effect by giving written notice to Supplier if Supplier commits a breach of Section 6.1.
6.3 Supplier shall obtain and maintain in force for the Term all licences, permissions, authorizations, consents and permits needed to supply the Goods and/or Services in accordance with this Contract.
6.4 Supplier has or shall obtain, within the first ninety (90) days upon entering into the Contract and thereafter maintain during the Term, insurance cover for amounts that are sufficient to cover its potential liability under this Contract. Upon eMed’s written request, Supplier shall provide eMed, within seven (7) Business Days, with a certificate of insurance evidencing such insurance coverage. Supplier shall ensure that eMed's interest is noted on each insurance policy, or that a generic interest clause has been included.
6.5 Supplier shall:
- do nothing to invalidate, or prejudice eMed’s entitlement under, any insurance policy; and
- notify eMed if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.
7.1 In consideration for the provision of the Goods and/or the Services, eMed shall pay the price and/or fees set out in the Purchase Order (which shall include costs of packing, insurance and carriage of Goods). eMed shall not be liable for additional expenses incurred by Supplier, other than as specifically provided for in the Purchase Order.
7.2 Supplier shall be entitled to invoice eMed for: (a) the Goods at any time after Delivery and acceptance of the Goods; and (b) the Services upon completion of performance of the Services. The invoice shall quote the Purchase Order number.
7.3 eMed shall pay invoices within 45 days following receipt by eMed’s accounts team of Supplier’s valid invoice. Payment shall be made to a bank account nominated in writing by Supplier.
7.4 If eMed disputes any invoice, eMed shall immediately notify Supplier in writing and shall pay any undisputed portion of the invoice in accordance with Section 7.3. The parties shall negotiate in good faith to attempt to resolve the dispute promptly, failing which, the dispute shall be resolved in accordance with Section 12.11. Supplier's obligation to supply the Goods and/or Services shall not be affected by any payment dispute.
7.5 All amounts payable by eMed exclude amounts in respect of value added tax (VAT), which (if applicable) eMed shall additionally be liable to pay to Supplier at the prevailing rate, subject to receipt of a valid VAT invoice.
8.1 Without affecting any other right or remedy available to it, eMed may terminate this Contract at any time by giving not less than 30 days’ written notice.
8.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if the other party:
- commits a material breach of this Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- institutes or has instituted against it insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of that party’s debts, or makes an assignment for the benefit of its creditors;
- suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- deteriorates in its financial position to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 On termination or expiry of this Contract:
- each party shall promptly return to the other party all property belonging to the other party held in connection with this Contract;
- each party shall return to the other party (or delete, excluding back-ups) all Confidential Information of the other party, other than business records required by law, government or regulatory requirement, and upon request confirm compliance to the other party in writing;
- eMed shall pay all of Supplier’s uncontested unpaid invoices and, in respect of Goods or Services supplied but for which no invoice has been submitted, Supplier may submit an invoice, which shall be payable in accordance with Section 7.3;
- if the Contract is terminated due to Supplier’s breach, eMed shall not be obligated to pay for Services provided after the date of termination. Supplier shall also refund any pre-paid charges to eMed, corresponding to any Goods or Services not supplied following the date of termination; and
- the following Sections shall survive and continue in full force and effect: 6.4 (Insurance), 8.3 (Termination), 10 (Indemnity and Liability), 11 (Confidentiality), 12.10 (Governing law) and 12.11 (Jurisdiction).
8.4 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.
9. INTELLECTUAL PROPERTY AND PRIVACY
9.1 Supplier and its licensors shall retain ownership of all Supplier IPRs. eMed and its licensors shall retain ownership of all Intellectual Property Rights in the eMed Materials.
9.2 All Intellectual Property Rights in the Deliverables shall be owned by eMed. Supplier will, at eMed’s expense, cooperate with any steps required to vest such rights in eMed. Supplier grants eMed, or shall procure the direct grant to eMed of, a fully paid-up, sublicensable, worldwide, non-exclusive, royalty-free, irrevocable, perpetual licence to use Supplier IPRs to the extent required in order to enable eMed to use the Deliverables or the Services.
9.3 eMed grants Supplier for the Term a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable, non-assignable licence to use the eMed Materials solely to provide the Services in accordance with this Contract.
9.4 The parties do not intend to share, store, transmit or otherwise process any protected health information, personal information, personal data or similar in connection with this Contract. If either party so processes any such data under this Contract, the parties will comply with their respective obligations under applicable data protection and privacy laws.
10. INDEMNITY AND LIABILITY
10.1 Supplier shall indemnify eMed, its Affiliates and their respective directors, officers, employees and agents (”Indemnified Parties”), in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by an Indemnified Party arising out of or in connection with:
- any claim made against an Indemnified Party for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Goods, Services or Deliverables by eMed (in which case Supplier shall, at its sole expense, either procure the right to continue providing the Services or modify or replace the Services and/or the Deliverables to make them non-infringing without materially reducing their functionality);
- any claim made against an Indemnified Party by a third party arising out of, or in connection with, the supply of the Goods or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Contract by Supplier, its employees, agents or subcontractors; and/or
- any claim made against an Indemnified Party by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products or Services, to the extent that the defect is attributable to the acts or omissions of Supplier, its employees, agents or subcontractors.
10.2 Nothing in this Contract limits any liability:
- for death or personal injury caused by negligence;
- for fraud or fraudulent misrepresentation;
- for negligent or willful breach of any provision of this Contract;
- for any other liability that cannot legally be limited under applicable law; or
- under Section 10.1 or 11 of this Contract.
10.3 Subject to Section 10.2, neither party shall be liable to the other for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages (including loss of revenue, profits, use or other economic advantage) whether or not foreseeable or contemplated by the parties at the date the parties enter into the Contract.
10.4 Subject to Sections 10.2, and 10.3, eMed’s total aggregate liability to Supplier whether in contract, tort (including negligence), warranty or otherwise, arising out of or relating to this Contract will not exceed the amounts paid by eMed to Supplier under this Contract during the twelve (12) months prior to the event giving rise to the liability.
11.1 Each party undertakes that it shall not at any time during the term of this Contract and for a period of two years after termination or expiry disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or its Affiliates, including information relating to its operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”), except as permitted by this Section 11. Information that is publicly known, in the receiving party’s prior possession, rightfully disclosed by a third party or independently developed without using any other Confidential Information will not be considered Confidential Information.
11.2 Each party may only use the other party’s Confidential Information for the purposes of exercising its rights or carrying out its obligations under or in connection with this Contract, and may disclose the other party's Confidential Information:
- to its employees, officers, representatives, contractors or advisers who need to know such information to exercise the party's rights or carry out its obligations under or in connection with this Contract (“Representatives”). Each party shall ensure that its Representatives to whom it discloses the other party's Confidential Information comply with this Section 11; or; or
- as may be required (and solely to the extent required) by law, rule, regulation, a court of competent jurisdiction or any governmental or regulatory authority or in connection with legal proceedings, but only after giving reasonable notice to the other party, if permitted by law.
11.3 All Confidential Information is and shall remain the property of the disclosing party. Upon the disclosing party’s written request, the receiving party shall return or destroy (and provide evidence of destruction) all of the disclosing party’s Confidential Information.
12.1 The parties acknowledge and agree that this Contract shall govern the supply of Goods and/or Services under the Purchase Order to the exclusion of all other terms and conditions (including any terms or conditions which Supplier purports to apply under any other purchase order, confirmation of order, specification or other document). In the event of a conflict between these terms and conditions and a Purchase Order, these terms and conditions will prevail to the extent of the conflict.
12.2 Force majeure. Neither party shall be in breach of this Contract nor liable for delay or failure to perform, any of its obligations under the Contract if: (a) such delay or failure result from events, circumstances or causes beyond its reasonable control (excluding changes, delays or other failures caused due to Covid-19); and (b) such party uses reasonable endeavours to mitigate the effect of the event on the performance of its obligations. If a force majeure event prevents, hinders or delays Supplier's performance of its obligations for a continuous period of more than 2 weeks, eMed may terminate this Contract by giving 2 weeks' written notice to Supplier.
12.3 Assignment and other dealings. eMed may assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Supplier’s prior written consent. Supplier shall not at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract, without eMed’s prior written consent.
12.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver. A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision of this 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. If any provision of this Contract is deemed so deleted, 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.
12.8 Notices. Any notice given to a party in connection with this Contract (excluding the service of any proceedings or other documents in any legal action) shall be in writing and delivered by hand or by pre-paid first-class post or other next working day delivery service at (for eMed) the address on page 1 above or email@example.com or (for Supplier) the address or email address set out in the Purchase Order. Any notice shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or another next working day delivery service, at 9.00 am on the second Business Day after posting; or
- if sent by email, at the time of transmission, or, if this time falls outside business hours (9.00am to 5.00pm on a Business Day in the place of receipt), when business hours resume.
12.9 Third party rights. Nothing in this Contract, express or implied, may be construed to give any person other than the parties and their respective successors and permitted assigns any right, remedy, claim, obligation or liability arising from or related to this Contract.
12.10 Governing law. This 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 & Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England & Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.