Within these conditions the following definitions shall apply:
"Clinigen" shall mean Clinigen Group plc and any Clinigen Affiliate (as applicable).
“Clinigen Affiliate” shall mean any person that directly or indirectly Controls, is controlled by or is under common control with Clinigen Group plc and any legal entity that is consolidated within the group annual accounts of Clinigen Group plc.
“Control” and, with correlative meanings, the terms “controlled by” and “under common control with” shall mean the power to direct or cause the direction of the management or policies of a person whether through the direct or indirect ownership of voting securities, by contract, resolution, regulation or otherwise.
"Deliverables" shall mean 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.
"Intellectual Property Rights" shall mean patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Order" shall mean the authorised Purchase Order placed by Clinigen upon the Supplier for goods and / or services, including the conditions detailed herein and any authorised amendment thereto.
"Products" shall mean all goods to be supplied under the Order, and any replaced or repaired goods provided by the Supplier pursuant to an Order.
“Sanctions Laws” means any law, regulation or wider measure applicable to either Clinigen or the Supplier relating to the adoption, implementation and enforcement of economic sanctions, export controls and trade embargos.
“Sanctioned Person” means any individual, entity or body (i) specifically designated under Sanctions Laws, or (ii) owned or controlled by any individual, entity or body specifically designated or listed under Sanctions Laws, or (iii) acting for or on behalf of any individual, entity or body specifically designated or listed under Sanctions Laws.
"Services" shall mean all services to be supplied under the Order.
"Supplier" shall mean the contracting party on whom the Order is placed.
"Working Days" shall mean a day, other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
2. APPLICABLE CONDITIONS
These conditions and the Order shall constitute the entire agreement between the parties and shall supersede any prior communications or representations between the parties except that in the event of any conflict between these conditions and the Order and any signed agreement between the parties, the signed agreement shall take precedence.
By accepting Clinigen's Order the Supplier agrees that these conditions and the Order supersede any Conditions of Sale issued by the Supplier.
All of these conditions shall apply to the supply of both Products and Services except where the application to one or the other is specified.
3. OFFICIAL ORDER
No Products or Services will be accepted or paid for unless supplied in accordance with the Order. The Supplier shall reference the Order number on all correspondence entered into. Within 2 Working Days of the Order being issued, the Supplier shall sign and return a copy of the Order to confirm its acceptance. Failure to comply will result in the Order being deemed as accepted.
The Supplier shall not deliver the Products in instalments without Clinigen's prior written consent. Prior to accepting the Order, the Supplier will inform Clinigen if the Products must be delivered in instalments and Clinigen can consent in its discretion. Where it is agreed that the Products are to be delivered by instalments, they may be invoiced and paid for separately.
Prior to acceptance of the Order by the Supplier in accordance with clause 3, Clinigen may amend or withdraw its Order at any time. Once accepted, no variation to the Order will be recognised by Clinigen unless presented in writing and duly authorised by Clinigen in writing.
- Once an Order is accepted by the Supplier in accordance with clause 3, all Products or Services under each Order shall conform where applicable with the quantity, quality, standard and specification stated on the Order.
- All Products shall comply with all applicable statutory and regulatory requirements relating to the manufacture of the Products and shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for the purpose made known to the Supplier by Clinigen expressly or by implication and free from defect whether actual or latent.
- Where the Supplier has provided Clinigen with a sample of the Products, the Products delivered will be of the same quality as the sample and be without defect.
- All Products must comply with EU directive 2001/83/EC in order to minimise the risk of transmitting animal spongiform encephalopathy via medical Products. All new Products ordered by Clinigen require documentation from the manufacturer confirming compliance with the EU directive 2001/83/EC.
- All Products must have at least 12 months expiry remaining as at the date of delivery to Clinigen. Failure to comply will result in non-payment unless a prior agreement has been reached with Clinigen.
- In the event of a product recall the Supplier shall reimburse Clinigen for all reasonable expenses incurred in carrying out the recall.
- In providing the Services, the Supplier shall co-operate with and comply with all instructions of Clinigen, including requirements in the Order, and will perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade. The Supplier shall 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 Order.
All Products under the Order shall be securely and adequately packed, and the packaging marked with Clinigen's Order number. All packaging shall be non-chargeable and non-returnable, unless otherwise agreed in writing by Clinigen whereupon it may be returned at the Supplier's risk and expense.
7. DELIVERY AND PERFORMANCE
- Delivery shall be strictly in accordance with the instructions detailed on the Order, including date of delivery, and shall be at the risk of the Supplier. Delivery shall be made to the delivery address detailed on the Order during the following times, unless agreed otherwise by the parties: Monday to Friday - 8.00 a.m. to 4.00p.m. in the delivery location.
- Each delivery of the Products should be accompanied by a delivery note that quotes the Order number. Where the Products are being delivered in instalments, the delivery note must identify this along with the outstanding balance of Products remaining to be delivered.
- All temperature sensitive Products must be clearly labelled to identify them as such and transported within the manufacturer's required storage temperature parameters.
- If, for whatever reason delivery is not effected in accordance with the Order, then Clinigen may, without prejudice to any other right or remedy, wholly or partially terminate the Order without incurring liability to the Supplier.
- The Supplier shall meet any performance dates for the Services specified in the Order or that Clinigen notifies to the Supplier.
- Title in the Products shall pass to Clinigen on the unloading of the Products at the delivery address detailed on the Order (or for international orders at the import terminal prior to customs clearance). Such passing of title shall not constitute acceptance of the Products.
- In the event of Clinigen being unable to accept deliveries, for whatever reason, Clinigen shall have the right to suspend, wholly or in part, deliveries under the Order.
8. INSPECTION AND REJECTION
Clinigen shall have the right to inspect the Products when delivered and to review the Services. If the Products are not delivered on the delivery date identified in the Order, or if the Products and/or Services do not conform with the Order or do not comply with clause 5 of these conditions, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Products or Services, Clinigen may:
- reject the Products or Services (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense. Any Products or Services rejected shall be deemed as not having been delivered or performed;
- require the Supplier to repair or replace the rejected Products, to provide repeat performance of the Services, or to provide a full refund of the price of the rejected Products or Services;
- recover from the Supplier any costs incurred by Clinigen in obtaining substitute goods or services from a third party; and
- claim damages for any other costs, loss or expenses incurred by Clinigen which are in any way attributable to the Supplier's failure to carry out its obligations.
Prices shall be as stated on the face of the Order and unless agreed otherwise shall be exclusive of Value Added Tax or similar tax and customs duties which if applicable shall be payable by Clinigen in addition to the Price at the rate in force under the applicable law. No alterations will be accepted unless by prior written agreement from Clinigen.
Prices shall include costs of packaging, insurance and carriage of the Products and include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
10. INVOICES AND PAYMENT
- Invoices quoting the Order number, description and quantity of Products delivered or Services provided shall be forwarded at the time of despatch or after the completion of the Services to the relevant address as advised by Clinigen. Failure to detail any of the above information may result in a delay in payment by Clinigen.
- Unless otherwise stated in the Order, payment will normally be made in the month following the month in which the Products or Services in accordance with the Order, and a correct invoice, are received.
In respect of the Order, the Supplier hereby agrees to indemnify and hold harmless Clinigen against all claims, damages, liabilities and costs (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 Clinigen resulting from:
- any damage, loss, death or injury caused by an act, negligence or omission arising out of or in connection with defects in Products or Deliverables, to the extent that the defects in the Products and Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or its sub contractors;
- any defect in or damage to the Products caused by or contributed to by the Supplier;
- any alleged or actual infringement of any Intellectual Property Rights in existence or pending at the date of the Order relating to the manufacture, supply or use of the Products, or receipt, use or supply of the Services and Deliverables; and
- any breach of Sanctions Laws.
- This clause shall survive termination of an Order.
The Supplier hereby agrees that no work in pursuance of the Order shall be assigned without the prior written consent of Clinigen.
All confidential information associated with the Order, including confidential information concerning the business, affairs, customers, clients or suppliers of the other party, shall be treated as strictly confidential between Clinigen and the Supplier.
14. PARTIAL INVALIDITY AND WAIVER
Any provision of the Order subsequently found to be invalid shall not in any way affect the validity or enforceability of the remainder of the Order. Any failure by either party to enforce any provision of the Order shall not be construed as a waiver of that or any other provision.
Any Notice or other communication entered into shall be in writing, and addressed to the Supplier if notices are being given to the Supplier, or to the Clinigen entity named in the Order if notices are being given to Clinigen.
16. INTELLECTUAL PROPERTY
- All Intellectual Property Rights in Deliverables or arising out of or in connection with the Services (other than Intellectual Property Rights in the any materials in the Deliverables that was owned by the Supplier prior to providing the Services ("Background IP") shall be owned by Clinigen, unless agreed otherwise between the parties.
- The Supplier hereby assigns to Clinigen, or shall procure the assignment to Clinigen of, all rights, title and interest in the Deliverables (except to the Background IP) anywhere in the world.
- The Supplier hereby grants Clinigen a fully paid-up, non-exclusive, royalty-free, irrevocable and perpetual licence to use, modify and publish the Background IP to the extent it is incorporated in the Deliverables so that Clinigen may use the Deliverables in any way it wishes.
- Clinigen grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by Clinigen to the Supplier for the term of the Order for the purpose of providing the Services to Clinigen.
- For Convenience - Clinigen shall have the right to terminate the Order in whole or part, at any time before delivery of the Products or completion of the Services, by serving on the Supplier written notice of termination. Upon receipt of such notice of termination all terminated work shall be discontinued and Clinigen shall pay to the Supplier such sum as is fair and reasonable in respect of any direct loss sustained by the Supplier by reason solely of such termination and the Supplier agrees to accept such sum in full and final satisfaction of all claims arising out of such termination.
In the event of termination of the Order, the Supplier shall use its best endeavours to mitigate the loss arising from such termination.
In no case shall the amount payable by Clinigen for the terminated Services or Products exceed the price that would have been payable if the Services had been completed or the Products delivered.
- For Default - Clinigen shall notify the Supplier of any breach or default of these conditions. If the Supplier is unable to remedy such breach or default within a period of 30 days from the notice being given then Clinigen reserves the right to terminate the Order in whole or part without incurring liability to the Supplier.
- For Insolvency - In the event that the Supplier becomes insolvent then Clinigen reserves the right to suspend or terminate the Order without incurring liability to the Supplier.
Termination of an Order, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of these conditions which existed at or before the date of termination.
18. FORCE MAJEURE
Neither party shall be in breach nor liable for delay in performing, or failure to perform, any of its obligations under these conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate the Order immediately by giving written notice to the affected party.
19. DATA PRIVACY
Where Clinigen processes your personal data in relation to the purchase of Products or Services under the Order we will comply with any applicable data protection legislation currently in force, including but not limited to (i) the Data Protection Act 2018, the UK GDPR, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time and (ii) any successor legislation thereto
20. ANTI-BRIBERY AND CORRUPTION
Both Clinigen and the Supplier shall not, and shall procure that their respective directors and employees shall not, engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and anti-corruption laws, regulations and codes in any jurisdiction, including but not limited to the Bribery Act 2010 and, where applicable, the Foreign Corrupt Practices Act 1977.
21. MODERN SLAVERY
Each party shall and shall procure (where relevant) that all persons who are performing services or providing goods in connection with, or which will or may be used in performing or to support the performance of these conditions in any part of the world (collectively, its "Supply Chain") shall at all relevant times (a) comply with the provisions of the Modern Slavery Act 2015; (b) not engage in any activity, practice or conduct that would constitute an offence under the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and (c) take all reasonable steps to ensure that slavery and human trafficking are not taking place in its business or its Supply Chain.
The Supplier and Clinigen acknowledge the existence of Sanctions Laws and shall ensure that they comply with all applicable Sanctions Laws to which either the Supplier or Clinigen are subject, including those of any jurisdiction where either the Supplier or Clinigen are located or incorporated. The Supplier and Clinigen shall not take any action or refrain from taking any action which would, or would in the reasonable opinion of the party subject to Sanctions Laws, cause such party to breach such Sanctions Laws. The Supplier shall carry out appropriate due diligence with regards to any third party involved in the supply of the Products and Services. The Supplier shall ensure that it has no knowledge or reasonable cause to suspect that any activities relating to the Products or Services will, either directly or indirectly, involve any Sanctioned Person or will otherwise be in breach of Sanctions Laws. In the event of either party becoming a Sanctioned Person, the other party may terminate any Orders with immediate effect and without payment of compensation.
23. APPLICABLE LAW
This Agreement and any Order shall be subject to and interpreted in accordance with the Laws of England and the Supplier hereby submits to the jurisdiction of the English Courts.