HEALTH UNLIMITED – Supplier Standard Terms & Conditions
May 2018 edition
1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in
England, when banks in London are open for business.
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 16.10.
Contract: the contract between the Customer and the Supplier for the supply
of Goods and/or Services in accordance with these Conditions.
Control: shall be defined as in section 1124 of the Corporation Tax Act 2010,
and the expression change of Control shall be construed accordingly.
Customer: Health Unlimited Limited registered in England and Wales with
company number 03574785
Customer Materials: has the meaning set out in clause 5.3(j).
Deliverables: all documents, products and materials developed by the
Supplier or its agents, contractors and employees as part of or in relation to
the Services in any form or media, including drawings, maps, plans,
diagrams, designs, pictures, computer programs, data, specifications and
reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related
plans and drawings that is agreed in writing by the Customer and the
Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions,
copyright and neighbouring 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 or unfair competition, rights
in designs, rights in computer software, database rights, rights to use, and
protect the confidentiality of, confidential information (including know-how and
trade secrets), and all other intellectual property rights, in each case whether
registered or unregistered and including all applications and rights to apply for
and be granted, renewals or extensions of, and rights to claim priority from,
such rights and all similar or equivalent rights or forms of protection which
subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services, as set
out in the Customer's purchase order form, or in the Customer's written
acceptance of the Supplier's quotation, or by email with pre-agreed
authorisation from a procurement officer within the Customer, as the case
may be.
Services: the services, including any Deliverables, to be provided by the
Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in
writing by the Customer.
Supplier: the person or firm from whom the Customer purchases the Goods
and/or Services.
1.2 Interpretation:
(a) Where any provision contained in a specific written contract signed by the
parties for the supply of goods and/or services, an Order, Goods
Specifications or Services Specifications conflict with any provision of
these Conditions, the following order of precedence shall apply (1) written
contract; (2) Order; (3) Goods Specifications or Services Specifications;
(4) these Conditions.
(b) A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality).
(c) A reference to a party includes its personal representatives, successors
and permitted assigns.
(d) A reference to a statute or statutory provision is a reference to it as
amended or re-enacted. A reference to a statute or statutory provision
includes all subordinate legislation made under that statute or statutory
provision.
(e) 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.
(f) 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 from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) 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 Supplier seeks to impose or incorporate, or which are implied by
trade, custom, practice or course of dealing.
2.4 Any subcontractor or supplier used by the Supplier to fulfil the Order must be
approved by the Customer in writing in advance.
2.5 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.
3. Supply of Goods
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Goods Specification;
(b) 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;
(c) where they are manufactured products, be free from defects in design,
materials and workmanship and remain so for 12 months after delivery;
and
(d) comply with all applicable statutory and regulatory requirements relating
to the manufacture, labelling, packaging, storage, handling and delivery
of the Goods.
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:
(a) the Goods are properly packed and secured in such manner as to enable
them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which
shows the date of the Order, the 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
(c) it states clearly on the delivery note any requirement for the Customer to
return any packaging material for the Goods to the Supplier. Any such
packaging material shall only be returned to the Supplier at the cost of
the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order or, if no such date is specified, then
within the timeframe specified verbally or in writing by the Customer;
(b) to the Customer's premises or such other location as is set out in the
Order or as instructed by the Customer before delivery (Delivery
Location); and
(c) during the Customer's normal hours of business on a Business Day, 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 If the Supplier delivers less or more of the quantity of Goods ordered, the
Customer may reject the Goods and any rejected Goods shall be returnable
at the Supplier's risk and expense.
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 6.1.
4.6 Title and risk in the Goods shall pass to the Customer on completion of delivery.
5. Supply of Services
5.1 The Supplier shall from the Commencement Date and for the duration of the
Contract supply the Services to the Customer in accordance with the terms of
the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in
the Order or that the Customer notifies to the Supplier and time is of the
essence in relation to any of those performance dates.
5.3 In providing the Services, the Supplier warrants that it shall:
(a) co-operate with the Customer in all matters relating to the Services, and
comply with all instructions of the Customer;
(b) perform the Services with the best care, skill and diligence in accordance
with best practice in the Supplier's industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks
assigned to them, and in sufficient number to ensure that the Supplier's
obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services and Deliverables will conform with all
descriptions and specifications set out in the Service Specification, and
HEALTH UNLIMITED – Supplier Standard Terms & Conditions
May 2018 edition
that the Deliverables shall be fit for any purpose that the Customer
expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are
required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and
ensure that the Deliverables, and all goods and materials supplied and
used in the Services or transferred to the Customer, will be free from
defects in workmanship, installation and design;
(g) obtain and at all times maintain all licences and consents which may be
required for the provision of the Services;
(h) comply with all applicable laws, regulations, regulatory policies,
guidelines or industry codes which may apply to the provision of the
Services, including the CAP and BCAP Code (if applicable);
(i) observe all health and safety rules and regulations and any other security
requirements that apply at any of the Customer's premises;
(j) hold all materials, equipment and tools, drawings, specifications and data
supplied by the Customer to the Supplier (Customer Materials) in safe
custody at its own risk, maintain the Customer Materials in good condition
until returned to the Customer, and not dispose or use the Customer
Materials other than in accordance with the Customer's written
instructions or authorisation;
(k) not do or omit to do anything which may cause the Customer to lose any
licence, authority, consent or permission upon which it relies for the
purposes of conducting its business, and the Supplier acknowledges that
the Customer may rely or act on the Services;
(l) comply with any additional obligations as set out in the Service
Specification, including any service levels;
(m) shall comply with all applicable anti-slavery and human trafficking laws,
statues and regulations in force from time to time including, but not
limited to, the Modern Slavery Act 2015 and shall not engage in any
activity, practice or conduct which would constitute an offence under this
Act, and shall promptly report to the Customer as soon as it becomes
aware of any breach, or potential breach, or any actual or suspected
slavery or human trafficking in a supply chain which has a connection
with these Conditions;
(n) comply with all applicable laws, statutes, regulations, codes and guidance
relating to anti-bribery and anti-corruption, including the UK Bribery Act
2010, and promptly report to the Customer any request or demand for
any undue financial or other advantage of any kind received by you in
connection with supply or Goods and/or Services to the Customer;
(o) maintain at all times appropriate IT security systems, policies and
procedures to comply with its obligation under these Conditions
6. Customer remedies
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the
applicable date, the Customer shall, without limiting or affecting other rights or
remedies available to it, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to
the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or
delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the Customer in
obtaining substitute goods and/or services from a third party;
(d) 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
(e) 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.
6.2 If the Goods are not delivered by the applicable date, the Customer may, at
its option, claim or deduct 5% of the price of the Goods for each week's delay
in delivery by way of liquidated damages, up to a maximum of 50% of the
total price of the Goods. If the Customer exercises its rights under this clause
6.2 it shall not be entitled to any of the remedies set out in clause 6.1 in
respect of the Goods' late delivery.
6.3 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, whether or not it has accepted the Goods:
(a) to terminate the Contract with immediate effect by giving written notice to
the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed
and to return them to the Supplier at the Supplier's own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to
provide a full refund of the price of the rejected Goods;
(d) to refuse to accept any subsequent delivery of the Goods which the
Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by the Customer in
obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by
the Customer arising from the Supplier's failure to supply Goods in
accordance with clause 3.1.
6.4 These Conditions shall extend to any substituted or remedial services and/or
repaired or replacement goods supplied by the Supplier.
6.5 The Customer's rights under the Contract are in addition to its rights and
remedies implied by statute and common law.
7. Customer's obligations
7.1 The Customer shall:
(a) provide the Supplier with reasonable access at reasonable times to the
Customer's premises for the purpose of providing the Services; and
(b) provide such necessary information for the provision of the Services as
the Supplier may reasonably request.
8. Charges and payment
8.1 The price for the Goods:
(a) shall be the price set out in the Order, or if no price is quoted, the price
agreed between the parties verbally or in writing prior; and
(b) shall be inclusive of the costs of packaging, insurance and carriage of the
Goods. No extra charges shall be effective unless agreed in writing and
signed by the Customer.
8.2 The charges for the Services shall be set out in the Order, and shall be the
full and exclusive remuneration of the Supplier in respect of the performance
of the Services. Unless otherwise agreed in writing by the Customer, the
charges shall include every cost and expense of the Supplier directly or
indirectly incurred in connection with the performance of the Services.
8.3 In respect of the Goods, the Supplier shall invoice the Customer on or at any
time after completion of delivery. In respect of Services, the Supplier shall
invoice the Customer on completion of the Services. Each invoice shall
include such supporting information required by the Customer to verify the
accuracy of the invoice, including but not limited to the relevant purchase
order number.
8.4 In consideration of the supply of Goods and/or Services by the Supplier, the
Customer shall pay the invoiced amounts within 60 days of the date of a
correctly rendered invoice to a bank account nominated in writing by the
Supplier.
8.5 All amounts payable by the Customer under the Contract are exclusive of
amounts in respect of valued added tax chargeable from time to time (VAT).
Where any taxable supply for VAT purposes is made under the Contract by
the Supplier to the Customer, the Customer shall, on receipt of a valid VAT
invoice from the Supplier, pay to the Supplier such additional amounts in
respect of VAT as are chargeable on the supply of the Goods and/or Services
at the same time as payment is due for the supply of the Goods and/or
Services.
8.6 If the Customer fails to make a payment due to the Supplier under the
Contract by the due date, then the Customer shall pay interest on the overdue
sum from the due date until payment of the overdue sum, whether before or
after judgment. Interest under this clause 8.6 will accrue each day at 2% a
year above Barclays Bank plc’s base rate from time to time. This clause does
not apply to disputed invoices.
8.7 The Supplier shall maintain complete and accurate records of the time spent
and materials used by the Supplier in providing the Services, and the Supplier
shall allow the Customer to inspect such records at all reasonable times on
request.
8.8 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. 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.
9. Intellectual property rights
9.1 The Supplier warrants that it has full clear and unencumbered title to the
Goods and any goods transferred to the Customer in performance of the
Services, including in Deliverables, and at the date of delivery of such items
to the Customer, it has full and unrestricted right to sell and transfer title in all
such items to the Customer.
9.2 All Intellectual Property Rights created by the Supplier or any employee,
agent or subcontractor of the Supplier in the course of performing the
Services or exclusively for the purpose of performing the Services, including
in any Deliverables, shall vest in the Customer upon creation. The Supplier
hereby assigns and shall procure the assignment of any Intellectual Property
Rights that arise in pursuant to this clause to the Customer.
9.3 The Supplier shall obtain irrevocable waivers of all moral rights in any Goods
and any goods transferred to the Customer in performance of the Services,
including in Deliverables, and the Services, to which any individual is now or
may be at any future time entitled under Chapter IV of Part I of the Copyright
Designs and Patents Act 1988 or any similar provisions of law in any
jurisdiction.
9.4 Each party shall, at its own cost, promptly do or procure the doing of all such
acts and things and execute or procure the execution of all such documents
may from time to time be required to give effect to this clause.
HEALTH UNLIMITED – Supplier Standard Terms & Conditions
May 2018 edition
9.5 All Customer Materials are the exclusive property of the Customer.
10. Indemnity
10.1 The Supplier shall indemnify the Customer from and 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 professional costs and expenses) suffered or incurred by the Customer
arising out of or in connection with:
(a) any claim made against the Customer for actual or alleged infringement
of a third party's intellectual property rights arising out of, or in connection
with, the manufacture, supply or use of the Goods, or receipt, use or
supply of the Services (excluding the Customer Materials);
(b) any claim made against the Customer by a third party for death, personal
injury or damage to property arising out of, or in connection with, defects
in the Goods, as delivered, or the Deliverables; and
(c) 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;
and
(d) any breach of these Conditions.
10.2 This clause 10 shall survive termination of the Contract.
11. Insurance & Audit
11.1 During the term of the Contract and for a period of 2 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.
11.2 The Customer and its agents and auditors shall have the right to examine,
audit and take copies of Supplier’s books and records for the purposes of
auditing the Supplier’s compliance with these Conditions.
12. Data Protection
To the extent that the Services relate to or involve the control or processing of
Personal Data (as defined in the EU General Data Protection Regulation
(GDPR) the Supplier warrants that it shall comply with the provisions of the
GDPR and the parties shall enter into a separate data processing agreement
as applicable.
13. Confidentiality
13.1 Each party undertakes that it shall not at any time disclose to any person any
confidential information concerning the business, affairs, customers, clients or
suppliers of the other party, except as permitted by clause 12.2.
13.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers
who need to know such information for the purposes of carrying out the
party's obligations under the Contract. Each party shall ensure that its
employees, officers, representatives, subcontractors or advisers to whom
it discloses the other party's confidential information must comply with
this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any
governmental or regulatory authority.
13.3 Neither party shall use the other party's confidential information for any
purpose other than to perform its obligations under the Contract.
14. Termination
14.1 Without affecting any other right or remedy available to it, the Customer may
terminate the Contract:
(a) with immediate effect by giving written notice to the Supplier if:
(i) there is a change of Control of the Supplier; or
(ii) the Supplier's financial position deteriorates to such an extent that in
the Customer's opinion the Supplier's capability to adequately fulfil its
obligations under the Contract has been placed in jeopardy; or
(iii) the Supplier commits a breach of clause 5.3,
(b) for convenience by giving the Supplier one (1) months written notice.
14.2 Without affecting any other right or remedy available to it, either party may
terminate the Contract with immediate effect by giving written notice to the
other party if:
(a) the other party commits a material breach of any term of the Contract
which breach is irremediable or (if such breach is remediable and the
Customer wishes for such breach to be remedied) fails to remedy that
breach within a period of twenty (20) days after being notified in writing to
do so;
(b) the other party takes any step or action in connection with its entering
administration, provisional liquidation or any composition or arrangement
with its creditors (other than in relation to a solvent restructuring), being
wound up (whether voluntarily or by order of the court, unless for the
purpose of a solvent restructuring), having a receiver appointed to any of
its assets or ceasing to carry on business or, if the step or action is taken
in another jurisdiction, in connection with any analogous procedure in the
relevant jurisdiction; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens
to cease to carry on all or a substantial part of its business.
15. Consequences of termination
15.1 On termination of the Contract, 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, the Supplier shall be solely responsible for their
safe keeping and will not use them for any purpose not connected with the
Contract.
15.2 Termination or expiry of the Contract shall not affect the parties' rights and
remedies that have accrued as at termination or expiry, including the right to
claim damages in respect of any breach of the Contract which existed at or
before the date of termination or expiry.
15.3 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.
16. General
16.1 The Customer may at any time assign, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other manner with all or any of its
rights and obligations under the Contract.
16.2 The Supplier shall not assign, transfer, mortgage, charge, subcontract,
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.
16.3 Any notice or other communication given to a party under or in connection
with the Contract shall be in writing and shall be delivered by hand or by pre-
paid first-class post or other next working day delivery service at its registered
office (if a company) or its principal place of business (in any other case); or
sent by email to the address specified in the Order. A notice or other
communication shall be deemed to have been received: if delivered by hand,
on signature of a delivery receipt or at the time the notice is left at the proper
address; if sent by pre-paid first-class post or other next working day delivery
service, at 9.00 am on the second Business Day after posting; if sent by
email, at 9.00 am on the next Business Day after transmission. This clause
does not apply to the service of any proceedings or other documents in any
legal action or, where applicable, any other method of dispute resolution.
16.4 If any provision or part-provision of the Contract is or becomes invalid, illegal
or unenforceable, it shall be deemed modified to the minimum extent
necessary to make it valid, legal and enforceable. If such modification is not
possible, the relevant provision or part-provision shall be deemed deleted.
Any modification to or deletion of a provision or part-provision under this
clause shall not affect the validity and enforceability of the rest of the
Contract.
16.5 A waiver of any right or remedy under the Contract or by law is only effective
if given in writing and shall not be deemed a waiver of any subsequent breach
or default. A failure or delay by a party to exercise any right or remedy
provided under the Contract or by law shall not constitute a waiver of that or
any other right or remedy, nor shall it prevent or restrict any further exercise
of that or any other right or remedy. No single or partial exercise of any right
or remedy provided under the Contract or by law shall prevent or restrict the
further exercise of that or any other right or remedy.
16.6 Nothing in the Contract is intended to, or shall be deemed to, establish any
partnership or joint venture between the parties, constitute either party the
agent of the other, or authorise either party to make or enter into any
commitments for or on behalf of the other party.
16.7 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.
16.8 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.
16.9 The rights of the parties to rescind or vary the Contract are not subject to the
consent of any other person.
16.10 Except as set out in these Conditions, no variation of the Contract, including
the introduction of any additional terms and conditions, shall be effective
unless it is agreed in writing and signed by the parties or their authorised
representatives.
16.11 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.
16.12 Each party irrevocably agrees that the courts of England and Wales shall
have exclusive jurisdiction to settle any dispute or claim (including non-
contractual disputes or claims) arising out of or in connection with the
Contract or its subject matter or formation.