Supplier Terms and Conditions

GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES FOR PURAGEN

These terms and conditions shall apply to any contract concluded orally, in writing or by email between Puragen and the Supplier and no terms and conditions of the Supplier will be applicable to such a contract unless they have been specifically agreed in writing and signed by both parties.

1. Interpretation

1.1          The following definitions and rules of interpretation in this clause apply in this agreement.

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day;

Commencement Date: the date on which either (a) is stated in the Supplier Agreement or the date thereof; or (b) the date upon which an Order or, if a series of Orders, the first Order is placed by Puragen with the Supplier; 

Confidential Information: any information of a confidential nature concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of its Group, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers;

Delivery: delivery of Goods and Services and/or delivery of physical items specified in an Order;

Delivery Date: the date specified for delivery of Goods and Services specified in an Order in accordance with clause 5.1(c);

Delivery Location: the location specified for delivery of Goods and Services specified in an Order in accordance with clause 5.1(c);

Employment Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) and all other Applicable Laws in any applicable jurisdiction regulating the automatic transfer of employment on a service provision change;

Force Majeure Event: has the meaning given in clause 28.1;

Goods and Services: the Goods and Services ordered by and supplied to Puragen;

Group: 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;

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks 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, 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;

Mandatory Policies: the policies of Puragen communicated to the Supplier, as amended by notification to the Supplier from time to time;

month: a calendar month;

Order: an order for Goods and Services submitted by Puragen in accordance with clause 5;

Order Number: the reference number to be applied to an Order by the Supplier in accordance with clause 5.2;

Prices: the prices of the Goods and Services as determined in accordance with clause 17.1;

Puragen: Puragen Limited, a company incorporated and registered in England and Wales with company number 02504167 acting for itself and on behalf of all members of the Puragen Group;

Specification: the specification of the Goods and Services provided to the Supplier by Puragen;

Supplier: any party that provides Goods and Services to Puragen;

Supplier Agreement: an agreement between the Supplier and Puragen setting out the terms applicable to the contract between them, which incorporates these General Terms and Conditions; and

VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere. 

2. Supply of Goods and Services

2.1          The Supplier shall supply, and Puragen shall purchase, such Goods and Services as Puragen or any member of Puragen’s Group may order under clause 5 in accordance with these terms and conditions.

2.2          Puragen shall be under no obligation to purchase any or any minimum quantity of Goods and Services.

2.3          The Supplier shall provide the Goods and Services to Puragen from the Commencement Date in accordance with these terms and conditions and an Order.

2.4          The Supplier shall provide the Goods and Services in accordance with the performance dates specified in the Order. Time is of the essence in relation to each performance date set out in an Order.

2.5          In supplying the Goods and Services, the Supplier shall:

(a)       do so with the highest level of care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;

(b)       co-operate with Puragen in all matters relating to the Goods and Services, and comply with Puragen’s reasonable instructions as to the provision of Goods and Services;

(c)       maintain all consents, licences and permissions needed to provide the Goods and Services;

(d)       ensure that the Goods and Services conform to the Specification and to the requirements and standards set out in these terms and conditions and that the Deliverables are fit for any purpose that Puragen expressly or impliedly makes known to the Supplier; 

(e)       ensure that all goods, materials, standards and techniques used in the provision of the Goods and Services, are of the best quality and are free from defects in workmanship, installation and design;

(f)         comply with: 

(i)          all Applicable Law; and

(ii)         the Mandatory Policies.

3. Supplier Service Levels

3.1          In addition to the general provisions relating to the supply of Goods and Services set out in clause 2, the Supplier should pay particular attention to clauses 8 – 13 (Service Clauses) to the extent to which these clauses are applicable to the services provided by the Supplier.

3.2          A failure by the Supplier to meet requirements of the Service Clauses will be taken into account in the review of the Supplier’s performance under the Supplier Agreement, including any price review in favour of Puragen or other consequence set out in a Supplier Agreement.

3.3          Any specific charge or cost incurred by Puragen as a result of a Supplier failing to meet the requirements of the Service Clauses may be passed on to the Supplier. Where practicable, any such charge or cost will be: 

(a)       invoiced to the Supplier; or

(b)       set-off against a Supplier’s invoice.

4. Provision of Forecasts

4.1          Puragen may (at its sole option) give the Supplier:

(a)       a forecast of the Goods and Services it expects to purchase during the three months following that month; and

(b)       not less than one month before the end of each year, a forecast of the Goods and Services it expects to purchase during the following year.

4.2          Forecasts shall, if given, be provided in writing or, if given orally, shall be confirmed in writing within a reasonable period. Puragen shall act in good faith when forecasting its requirements for Goods and Services.

4.3          Forecasts provided under this clause 4 do not constitute an Order.

4.4          If the Supplier anticipates that it will be unable to meet Puragen’s forecasted requirements provided in accordance with this clause 4:

(a)       the Supplier shall inform Puragen in writing as soon as practicable; and

(b)       without affecting any other right or remedy available to it, Puragen may at its option agree alternative delivery dates for the relevant Goods and Services, or obtain from any other person substitute Goods and Services for the Goods and Services which the Supplier anticipates it will be unable to supply.

5. Orders 

5.1          Each Order shall:

(a)       be given in writing or, if given orally, shall be confirmed in writing within two Business Days;

(b)       specify the type and quantity of the Goods and Services ordered;

(c)       unless the parties agree that Puragen may specify the date and location after placing the Order, specify the Delivery Date by or on which the Goods and Services ordered are to be delivered, and, if applicable any Delivery Location. If the Delivery Date and/or Delivery Location are to be specified after the placing of an Order, Puragen shall give the Supplier reasonable advance notice of the relevant information.

5.2          The Supplier shall use its best endeavours to provide Goods and Services in accordance with Puragen’s Orders, including the Delivery Date.

5.3          The Supplier shall assign an Order Number to each Order received from Puragen and notify such Order Numbers to Puragen. Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order.

5.4          Puragen may amend or cancel an Order by reasonable written notice to the Supplier. If Puragen amends or cancels an Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of amendment or cancellation, except that Puragen shall have no liability to the Supplier where the amendment or cancellation results from the Supplier’s failure to comply with its obligations under these terms and conditions.

5.5          In the event that the Supplier is reasonably required to provide the Goods and Services to Puragen on an ad hoc basis without the submission of a formal Order and the Supplier supplies such Goods and Services, the provisions of these terms and conditions shall apply as if a formal Order had been submitted by Puragen in accordance with this clause 5.

6. Supplier personnel

6.1          The Supplier shall ensure that all employers, workers, contractors and other personnel engaged by the Supplier, or any of its subcontractors, to provide the Goods and Services:

(a)       are suitably skilled and experienced to perform the tasks assigned to them, and in sufficient number to fulfil the Supplier’s obligations; and

(b)       observe all health and safety rules and regulations and security requirements that apply from time to time at Puragen’s premises they access.

6.2          If Puragen (acting reasonably) believes that any person engaged by the Supplier or any subcontractor is not providing the Goods and Services properly or effectively or is disruptive to Puragen’s business, Puragen may require the Supplier to remove that person from Puragen’s account and ensure they cease to be involved in the provision of Goods and Services. The Supplier shall promptly do so at its cost and without any material interruption to the provision of Goods and Services.

7.  Delivery of Goods Supplied by the Supplier

7.1          The Supplier shall deliver the Goods in each Order to the Delivery Location on the Delivery Date.

7.2          Delivery of an Order shall be complete on its arrival at the Delivery Location.

7.3          The Supplier shall not deliver Orders by instalments except with the prior written consent of Puragen. Where Orders are to be delivered by instalments, they may be invoiced and paid for separately. References in this agreement to Orders shall, where applicable, be read as references to instalments.

7.4          If an Order is not delivered on the specified Delivery Date, then, without affecting any other right or remedy available to it, Puragen may:

(a)       refuse to take any subsequent attempted delivery of the Order;

(b)       terminate this agreement with immediate effect;

(c)       obtain substitute Goods from another supplier and recover from the Supplier any costs and expenses reasonably incurred by Puragen in obtaining such substitute Goods; and

(d)       subject to clause 23, claim damages for any other costs, expenses or losses resulting from the Supplier’s failure to deliver the Order on the Delivery Date, provided that the Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by Puragen’s failure to comply with its obligations under this agreement.

7.5          If Puragen fails to accept delivery of an Order on the specified Delivery Date, then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under this agreement or a Force Majeure Event:

(a)       the Order shall be deemed to have been delivered at 9.00am on the Delivery Date; and

(b)       the Supplier shall store the Order until Puragen takes possession of the Order, and charge Puragen for all related costs and expenses (including insurance).

7.6          Each delivery of Goods shall be accompanied by a delivery note from the Supplier showing the Order Number, the date of the Order, the type and quantity of Goods included in the Order, including the code numbers of the Goods and, in the case of Goods being delivered by instalments, the outstanding balance of Goods specified in an Order remaining to be delivered.

7.7          If the Supplier requires Puragen to return any packaging materials to the Supplier, that fact must be clearly stated on the delivery note accompanying the relevant Order, and any such returns shall be at the Supplier’s expense.

8. Manufacture, quality and packing of Goods supplied by the Supplier

In relation to the supply of any physical products in the course of provision of the Goods and Services, the Supplier shall at all times: 

8.1          maintain sufficient manufacturing capacity, stocks of raw materials and packaging, and stocks of such products to enable it to meet Puragen’s usual requirements;

8.2          manufacture, pack and supply such products in accordance with all generally accepted industry standards and practices that are applicable;

8.3          ensure that any products supplied to Puragen by the Supplier under these terms and conditions shall:

(a)       conform to the 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 Puragen;

(c)       be free from defects in design, material and workmanship and remain so for 12 months after Delivery; and

(d)       comply with all applicable statutory and regulatory requirements;

8.4          ensure that any products are properly packed and secured in such manner as to enable them to reach their destination in good condition;

8.5          obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to manufacture and/or supply the products in accordance with these terms and conditions;

8.6          report any issues encountered during production or difficulties in meeting the Specification;

8.7          promptly advise when samples of finished products may be collected for further inspection and testing;

8.8          comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage, handling, and delivery of the products.

9. Waste Handling 

In relation to the provision of waste handling services, the Supplier shall at all times:

9.1          correctly identify waste and its corresponding European Waste Code (EWC);

9.2          record, and keep for no less than 2 years, details of the description, quantity, EWC, containment and transfer of waste;

9.3          act as an authorised waste transfer station;  

9.4          properly inspect and segregate waste and spent activated carbons from Puragen and the Supplier’s other customers.

10. Warehousing and Storage

In relation to the provision of warehousing and storage services, the Supplier shall at all times:

10.1       ensure that bags of reactivated, virgin, waste and spent activated carbon are correctly stored and handled in accordance with the guidance provided by Puragen;

10.2       keep bags of reactivated and virgin activated carbon clearly separate from waste and spent activated carbon, ensuring that each are correctly labelled; 

10.3       ensure that mobile filter units (MFU) are stored correctly and in accordance with the guidance provided by Puragen;

10.4       when storing any materials, plant, vehicles, property or similar goods belonging Puragen, ensure that the storage is in accordance with Puragen’s standards and that reasonable measures are taken to prevent damage or loss;  

10.5       maintain an accurate inventory of materials, plant, vehicles, property or similar goods belonging to Puragen; 

10.6       ensure that outbound shipments are processed and dispatched according to Puragen’s instructions.

11. MFU Servicing

In relation to the provision of MFU servicing, the Supplier shall at all times:

11.1       ensure that MFUs are properly loaded with activated carbon in accordance with the guidance provided by Puragen; 

11.2       carry out thorough inspections and detailed reports of MFUs;

11.3       correctly empty the MFUs; 

11.4       provide repair services for the MFUs;

11.5       thoroughly clean the interior and exterior of the MFUs when servicing;

11.6       provide a detailed report of any damage on arrival of an MFU or during MFU servicing; 

11.7       complete all servicing documentation in accordance with legislation and the guidance and manuals provided by Puragen.

12. Site Servicing 

In relation to the provision of site servicing, the Supplier shall at all times:

12.1       effectively communicate with Puragen to ensure that a clear date and times for arrival are agreed between the parties, including giving reasonable notice where the agreed timings cannot be met; 

12.2       ensure that employees of the Supplier properly conduct themselves on site, following all health and safety instructions and guidance provided to them;

12.3       ensure that they have the correct certificates, licenses and training, including for the operation of the relevant equipment, to carry out the services;

12.4       ensure that employees of the Supplier understand and follow the Risk Assessment and Method Statements provided to them;

12.5       in the absence of a Puragen employee on site, promptly report any issues;

12.6       clean up any spillages and remove any waste packaging from site before departing; 

12.7       ensure that all equipment used for site servicing is in good condition and working order and is tagged or inspected, where necessary.

13. Transportation

In relation to the provision of transportation services, the Supplier shall at all times:

13.1       correctly adhere to the timings provided by Puragen or Puragen’s customers; 

13.2       properly maintain Puragen’s trailers, ensuring that they are washed and kept in good repair;

13.3       properly use Puragen’s trailers in a way which prevents damage which may be caused by abuse or avoidable driver/operator error; 

13.4       insure, with a reputable insurer, Puragen’s trailers and the MFU while it is in transit from the Supplier’s site to Puragen’s customer’s site; 

13.5       provide any insurance documents when requested by Puragen.  

14. Acceptance and defective Goods supplied by the Supplier

14.1       Puragen shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following Delivery, or, in the case of a latent defect in the Goods and Services, until a reasonable time after the latent defect has become apparent.

14.2       If any Goods delivered to Puragen do not comply with clause 8.3, or are otherwise not in conformity with the terms of this agreement, then, without affecting any other right or remedy available to it, Puragen may reject those Goods and:

(a)       require the Supplier to repair or replace the rejected Goods at the Supplier’s risk and expense within five Business Days of being requested to do so; or

(b)       require the Supplier to repay the price of the rejected Goods in full (whether or not Puragen has previously required the Supplier to repair or replace the rejected Goods); and

(c)       claim damages for any other costs, expenses or losses resulting from the Supplier’s delivery of Goods that do not conform with the terms of this agreement.

14.3       Puragen’s rights and remedies under this clause 14 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this agreement by the Sale of Goods Act 1979.

14.4       The terms of this agreement shall apply to any repaired or replacement Goods supplied by the Supplier.

14.5       If the Supplier fails to promptly repair or replace rejected Goods in accordance with clause 14.2(a), Puragen may, without affecting its rights under clause 14.2(c), obtain substitute Goods from a third party supplier, or have the rejected Goods repaired by a third party, and the Supplier shall reimburse Puragen for the costs it incurs in doing so.

14.6       If the parties dispute whether any Goods comply with clause 8.3, either party may refer the matter to an Expert for determination in accordance with clause 27.

15. Damage and/or loss of goods and materials belonging to Puragen

15.1       In providing the Goods and Services, the Supplier shall take all reasonable steps to ensure that any damage to or loss of goods and materials belonging to Puragen is minimised. In the event that any such damage or loss of Puragen goods and materials occurs, the Supplier shall promptly notify Puragen and Puragen shall be entitled to charge the Supplier for their reasonable replacement value or repair.

15.2       Puragen shall be entitled to regularly carry out an audit of its goods and materials held by the Supplier and in the event of such an audit showing that damage or loss has occurred, charge the Supplier for their reasonable replacement value or repair.

15.3       In the event of a dispute regarding such damage or loss, the parties shall act in good faith to discuss and agree their value and in the event of being unable to reach such agreement, follow the dispute resolution process set out in clause 32 of these terms and conditions. 

16. Title and risk

16.1       Title to any goods and materials belonging to Puragen that are handled, processed or which otherwise come into the possession of the Supplier, shall at all times remain with Puragen. In handling such goods and materials the Supplier shall: 

(a)       store them separately from all other goods held by the Supplier in an area separated from the rest of the site where they are stored so that they remain readily identifiable as Puragen’s property;

(b)       not remove, deface or obscure any identifying mark or packaging on or relating to such property;

(c)       keep such property in its possession in satisfactory condition and in accordance with instructions from Puragen from time to time; and

(d)       give Puragen such information as it may reasonably require from time to time relating to such property.

16.2       Title and risk in any Goods delivered to Puragen shall pass to Puragen on Delivery.

17. Prices

17.1       Unless otherwise agreed in writing by the parties, the Prices for the Goods and Services are fixed and are inclusive of the costs of packaging, insurance, carriage or any similar ancillary cost.

17.2       The Prices are exclusive of amounts in respect of VAT. Puragen 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 a supply of Goods and Services.

17.3       The Supplier agrees that if at any time it sells any Service to a comparable customer for less than the Price then in force for that Service, it shall reduce the relevant Price to match the lower price for so long as the lower price is available (but for no longer). For the purposes of this clause, “comparable” means a customer that purchases Goods and Services in substantially similar volumes as Puragen on broadly similar terms and conditions.

18. Terms of payment

18.1       The Supplier shall be entitled to invoice Puragen for each Order on or at any time after Delivery. Each invoice shall quote the relevant Order Numbers.

18.2       Puragen shall pay invoices in full at the month end following the month of receipt. Payment shall be made to the bank account nominated in writing by the Supplier.

18.3       If a party fails to make a payment due to the other party under these terms and conditions by the due date, then, without limiting the other party’s remedies under clause 25.1, the defaulting party 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 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%.

18.4       If Puragen disputes any invoice or other statement of monies due, Puragen shall notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 30 days of Puragen giving notice to the Supplier, the dispute shall be resolved in accordance with clause 32. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause 18.2. The Supplier’s obligations to supply the Goods and Services shall not be affected by any payment dispute.

18.5       Puragen, without notice to the Supplier, set off any liability of the other party to it against any liability it has to the other party, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these terms and conditions. Any exercise by a party of its rights under this clause 18.5 shall not limit or affect any other rights or remedies available to it under these terms and conditions or otherwise.

19. Supplier records and disputes

19.1       The Supplier shall provide all such evidence as Puragen may reasonably request in order to verify invoices submitted by the Supplier and the Supplier shall, on request, allow Puragen to inspect and take copies of (or extracts from) all relevant records and materials of the Supplier relating to the supply of the Goods and Services as may be reasonably required in order to verify such matters.

19.2       All disputes concerning the Prices shall be resolved in accordance with clause 32.

20. Compliance with laws and policies

20.1       In performing its obligations under these terms and conditions, the Supplier shall and shall procure that each member of its Group comply with:

(a)       all applicable laws, statutes, regulations from time to time in force; and

(b)       the Mandatory Policies.

20.2       Puragen may terminate an agreement with the Supplier with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of clause 20.1.

21. Indemnity

21.1       In this clause 21, Losses means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses.

21.2       The Supplier shall indemnify Puragen against all Losses incurred by Puragen as a result of:

(a)       any claim that the supply, receipt or use of the Goods and Services infringes the Intellectual Property Rights of any third party; 

(b)       any claim or threatened claim by any person employed or engaged by the Supplier who alleges that they have become an employee of or have rights against Puragen by virtue of the Employment Regulations; or

(c)       any claim by a third party arising out of or in connection with defective Goods and Services supplied by the Supplier to the extent that the defect is attributable to the acts or omissions of the Supplier.

21.3       The Supplier will not be liable under the indemnity in clause 21.2 to the extent that any Losses result from Puragen’s breach of these terms and conditions, negligence or wilful misconduct.

21.4       If any third party brings a claim against Puragen, or notifies Puragen of its intention to do so, and that claim may reasonably be considered likely to give rise to a liability under the indemnity in clause 21.1 (Claim), Puragen shall:

(a)       as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;

(b)       allow the Supplier, at the Supplier’s cost, to conduct all negotiations and proceedings in relation to the Claim and to settle or compromise the Claim, provided that the Supplier must not settle or compromise the Claim without the prior written consent of Puragen (consent not to be unreasonably conditioned, withheld or delayed) unless it involves only the payment of money by the Supplier and includes a complete release of Puragen;

(c)       not make any admission of liability, settlement or compromise in relation to the Claim without the prior written consent of the Supplier (that consent not to be unreasonably conditioned, withheld or delayed), provided that Puragen may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Supplier, but without obtaining the Supplier’s consent), if Puragen reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect; and

(d)       provide the Supplier with reasonable information, assistance and co-operation in responding to and defending the Claim. This duty includes Puragen giving the Supplier and the Supplier’s professional advisers access at reasonable times (on reasonable prior notice) to: 

(i)          its premises and those of its officers, directors, employees, agents, representatives or advisers involved in the Claim; and 

(ii)         any relevant accounts, documents and records within the power or control of Puragen, 

so that the Supplier’s professional advisers can examine them and take copies (at the Supplier’s expense) for the purpose of assessing the Claim.

21.5       The Supplier’s liability under clause 21.1 will be reduced to the extent that any Losses are caused by the failure of Puragen to comply with the indemnification procedures in clause 21.4.

21.6       If a payment due from the Supplier under this clause 21 is subject to tax (whether by way of direct assessment or withholding at its source), the amount of the payment shall be increased to ensure that the net receipt, after tax, to Puragen is the same as it would have been were the payment not subject to tax.

21.7       Puragen shall use all reasonable endeavours to mitigate any Loss it may suffer or incur as a result of an event that may give rise to a claim under an indemnity.

22. Insurance

22.1       The Supplier shall maintain in force the following insurance policies with reputable insurance companies:

(a)       public liability insurance for not less than £5 million per claim; and

(b)       product liability insurance for not less than £5 million for claims arising from any single event and not less than £10 million in aggregate for all claims arising in a year.

The Supplier shall ensure that Puragen’s interest is noted on each insurance policy, or that a generic interest clause has been included.

22.2       On taking out and on renewing each policy, the Supplier shall promptly send a copy of the receipt for the premium to Puragen. On Puragen’s written request, the Supplier shall provide Puragen with copies of the insurance policy certificates and details of the cover provided.

22.3       The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under these terms and conditions which they are contracted to fulfil.

22.4       The Supplier shall:

(a)       do nothing to invalidate any insurance policy or to prejudice Puragen’s entitlement under it; and

(b)       notify Puragen if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.

22.5       The Supplier’s liabilities under these terms and conditions shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in clause 22.1.

22.6       If the Supplier fails or is unable to maintain insurance in accordance with clause 22.1, or fails to provide evidence that it has paid the current year’s premiums in accordance with clause 22.2, Puragen may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier.

23. Limitation of liability

23.1       References to liability in this clause 23 include every kind of liability arising under or in connection with these terms and conditions including liability:

(a)       in contract, tort (including negligence), misrepresentation, restitution or otherwise; and

(b)       arising out of any use made or resale of the Goods and Services by Puragen, or of any product incorporating any of the Goods and Services.

23.2       Nothing in these terms and conditions limits any liability for:

(a)       death or personal injury caused by negligence;

(b)       fraud or fraudulent misrepresentation;

(c)       breach of the terms implied by section 12 of the Sale of Goods Act 1979; 

(d)       breach of section 13 of the Supply of Goods and Services Act 1982;

(e)       breach of section 2 of the Consumer Protection Act 1987; or

(f)         any liability that cannot legally be limited.

23.3       Nothing in these terms and conditions shall limit any liability under clause 21.

23.4       Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

23.5       Subject to clause 23.2 and clause 23.4, Puragen’s total liability to the Supplier shall not exceed the total value of the Goods and Services supplied by the Supplier in the preceding year.

23.6       Specific heads of loss and exclusions from them

(a)       Subject to clause 23.2, clause 23.3 and clause 23.4, clause 23.6(c) identifies the kinds of loss that are not excluded. Subject to that, clause 23.6(b) excludes specified types of loss.

(b)       Types of loss excluded:

(i)          Loss of anticipated savings.

(ii)         Loss of use or corruption of software, data or information.

(iii)        Loss of or damage to goodwill.

(iv)       Indirect or consequential loss.

(c)       Types of loss and specific losses not excluded:

(i)          Sums paid by Puragen to the Supplier pursuant to these terms and conditions, in respect of any Goods and Services not provided in accordance with these terms and conditions.

(ii)         Wasted expenditure. 

(iii)        Additional costs of procuring and implementing replacements for, or alternatives to, Goods and Services not provided in accordance with these terms and conditions. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials.

(iv)       Losses incurred by Puragen arising out of or in connection with any third party claim against Puragen which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include demands, fines, penalties, actions, investigations or proceedings, including those made or commenced by subcontractors, the Supplier’s personnel, regulators and customers of Puragen.

24. Confidentiality

24.1       Each party undertakes that it shall not at any time during these terms and conditions and for a period of two years after termination or expiry of these terms and conditions disclose to any person any Confidential Information, except as permitted by clause 24.2.

24.2       Each party may disclose the other party’s Confidential Information:

(a)       to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these terms and conditions. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 24; and

(b)       as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

24.3       Neither party may use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these terms and conditions.

24.4       Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these terms and conditions are granted to the other party, or to be implied from these terms and conditions.

25. Termination

25.1       Without affecting any other right or remedy available to it, either party may terminate an agreement with immediate effect by giving written notice to the other party if:

(a)       the other party fails to pay any undisputed amount due under these terms and conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b)       the other party commits a material breach of any other term of these terms and conditions and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c)       the other party repeatedly breaches any of these terms and conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these terms and conditions;

(d)       the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;

(e)       the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f)         the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(g)       a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(h)       an application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or an administrator is appointed over the other party;

(i)         the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(j)         a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

(k)       a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(l)         any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 25.1(d) to clause 25.1(k) (inclusive); or

(m)     the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business.

25.2       For the purposes of clause 25.1(b), a material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:

(a)       a breach of any of the obligation set out in clauses 2.4, 2.5, 6, 8, 15.1, 16.1, 20, 22 and 24; or

(b)       a breach that has a serious effect on the benefit the terminating party would otherwise derive from these terms and conditions over any three-month period.

25.3       On termination or expiry of an agreement:

(a)       Puragen shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Goods and Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and

(b)       each party shall promptly:

(i)          return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it or a member of its Group in connection with the supply and purchase of the Goods and Services under these terms and conditions;

(ii)         return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;

(iii)        erase all the other party’s Confidential Information from its computer systems (to the extent possible); and

(iv)       on request, certify in writing to the other party that it has complied with the requirements of this clause 25.3.

26. Survival

26.1       On termination or expiry of an agreement the following clauses shall continue in force:

(a)       clause 21 (Indemnity);

(b)       clause 22 (Insurance);

(c)       clause 23 (Limitation of liability);

(d)       clause 24 (Confidentiality);

(e)       clause 25.3 (Obligations on termination);

(f)         clause 32 (Dispute resolution); 

(g)       clause 39 (Governing law); and

(h)       clause 40 (Jurisdiction)

26.2       Termination or expiry of an agreement 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 these terms and conditions which existed at or before the date of termination or expiry.

27. Expert determination

27.1       An Expert is a person appointed in accordance with this clause 27 to resolve certain matters as specified in these terms and conditions.

27.2       Where under these terms and conditions a party wishes to refer a matter to an Expert, the parties shall agree on the appointment of an independent Expert and shall agree with the Expert the terms of their appointment.

27.3       Where the parties propose to appoint an Expert, the Expert shall be:

(a)       in the case of a dispute relating to the Specification, quality, or appropriateness of the Goods and Services, a recognised professional individual of high standing with ample experience and practicing in an industry relevant to the subject of these terms and conditions; and

(b)       in the case of a dispute relating to Prices, a chartered or chartered certified account practising in an industry relevant to the subject of these terms and conditions.

If the parties are unable to agree on an Expert or the terms of appointment within seven days of either party serving details of a suggested expert on the other, either party shall then be entitled to request the trade or governing body of the industry relevant to the subject of these terms and conditions in the case of a dispute falling under clause 27.3(a) and the Institute of Chartered Accountants in England and Wales in the cases of a dispute falling under clause 27.3(b) to appoint as Expert respectively a the individual identified in clause 27.3(a) or chartered accountant of repute and for the trade or governing body of the industry relevant to the subject of these terms and conditions to agree with the Expert the terms of their appointment.

27.4       The Expert must prepare a written decision including reasons and give notice (including a copy) of the decision to the parties within a maximum of three months of the matter being referred to the Expert.

27.5       If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this clause 27, then:

(a)       the parties may agree to discharge the Expert; and

(b)       the parties may proceed to appoint a replacement Expert in accordance with this clause 27 which shall apply to the replacement Expert as if they were the first Expert to be appointed.

27.6       All matters to be determined in accordance with this clause 27 must be conducted, and the Expert’s decision shall be written, in the English language.

27.7       The parties are entitled to make submissions to the Expert including oral submissions and will provide (or procure that others provide) the Expert with any assistance and documents as the Expert reasonably requires to reach a decision.

27.8       To the extent not provided for by this clause 27, the Expert may, in their reasonable discretion, determine any other procedures to assist with the conduct of the determination as the Expert considers just or appropriate, including (to the extent the Expert considers necessary) instructing professional advisers to assist the Expert in reaching a determination.

27.9       Each party shall with reasonable promptness supply each other with all information and give each other access to all documents, personnel and things as the other party may reasonably require to make a submission under this clause 27.

27.10   The Expert shall act as an expert and not as an arbitrator. The Expert shall determine the matters referred to the Expert under these terms and conditions which may include any issue involving the interpretation of any provision of these terms and conditions, their jurisdiction to determine the matters and issues referred to them and the terms of reference. The Expert may award interest as part of their decision. The Expert’s written decision on the matters referred to them shall be final and binding on the parties in the absence of manifest error or fraud.

27.11   The Expert may direct that any legal costs and expenses incurred by a party in respect of the determination shall be paid by another party to the determination on the general principle that costs should follow the event, except where it appears to the Expert that, in the circumstances, this is not appropriate in relation to the whole or part of those costs. The Expert’s fees and any costs properly incurred by them in arriving at their determination (including any fees and costs of any advisers appointed by the Expert) shall be borne by the parties equally or in any other proportions as the Expert shall direct.

27.12   All matters concerning the process and result of the determination by the Expert shall be kept confidential among the parties and the Expert.

27.13   Each party shall act reasonably and co-operate to give effect to the provisions of this clause 27 and otherwise do nothing to hinder or prevent the Expert from reaching their determination.

27.14   The Expert and Nominating Body shall have no liability to the parties for any act or omission in relation to this appointment, save in the case of bad faith.

28. Force majeure

28.1       Force Majeure Event means any circumstance not in a party’s reasonable control including:

(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 action taken by a government or public authority, including 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 by the staff of the party seeking to rely on this clause, or companies in the same Group as that party or its subcontractors); and

(h)       interruption or failure of utility service.

28.2       Subject to clause 28.4, a party (Affected Party) shall not be liable for any failure or delay in performing any of its obligations under these terms and conditions for so long as, and to the extent that, its performance is directly prevented, hindered or delayed by a Force Majeure Event.

28.3       For so long as the Affected Party’s liability in relation to any of its obligations is suspended under clause 28.2, the other party shall not be liable for any failure or delay in performing its corresponding obligations. 

28.4       Clause 28.2 will only apply if the Affected Party:

(a)       as soon as reasonably practicable after the start of the Force Majeure Event but no later than seven days from its start, notifies 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 the Affected Party’s ability to perform any of its obligations under these terms and conditions;

(b)       took reasonable precautions to prevent or minimise the Force Majeure Event including implementing and complying with an effective business continuity plan, except where compliance with the business continuity plan is itself affected by the Force Majeure Event; and

(c)       uses all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

28.5       The Affected Party shall keep the other party informed of its endeavours under clause 28.4 and their outcome promptly on request.

28.6       If the Supplier is relieved from delivering the Goods and Services under this clause, it shall co-operate with any efforts that Puragen may make to obtain alternative supplies of those Goods and Services.

28.7       If the Affected Party has not resumed full performance of any obligations suspended under clause 28.2 within 90 days after giving notice of the start of the Force Majeure Event, the other party may terminate an agreement by giving not less than 30 days’ written notice to the Affected Party.

29. Assignment and other dealings

29.1       Subject to clause 29.2, neither party shall assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these terms and conditions without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

29.2       Either party may, after giving prior written notice to the other party, assign or subcontract any or all of its rights and obligations under these terms and conditions to a member of its Group for so long as that company remains a member of its Group.

30.          Costs

Except as expressly provided in these terms and conditions, each party shall pay its own costs incurred in connection with the negotiation, preparation and execution of an agreement and any documents referred to in it.

31.          Severance

31.1       If any provision or part-provision of these terms and conditions 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 these terms and conditions.

31.2       If any provision or part-provision of these terms and conditions is deemed deleted under clause 31.1 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.

32. Multi-tiered dispute resolution procedure

32.1       If a dispute arises out of or in connection with these terms and conditions or its performance, validity or enforceability (Dispute) then except as expressly provided in these terms and conditions, the parties shall follow the procedure set out in this clause:

(a)       either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute notice), together with relevant supporting documents. On service of the Dispute notice, the contract managers of the Supplier and Puragen shall attempt in good faith to resolve the Dispute;

(b)       if the contract managers of the Supplier and Puragen are for any reason unable to resolve the Dispute within 30 working days of service of the Dispute notice, the Dispute shall be referred to the Chief Executive (or equivalent authority) of the Supplier and Chief Executive of Puragen who shall attempt in good faith to resolve it; 

(c)       if the Chief Executive (or equivalent authority) of the Supplier and Chief Executive of Puragen are for any reason unable to resolve the Dispute within 60 working days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 30 working days of service of the Dispute notice, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR;

(d)       if there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, on which the parties cannot agree within 30 working days from the date of the ADR notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them; and

(e)       unless otherwise agreed between the parties, the mediation will start not later than 90 working days after the date of the ADR notice.

32.2       No party may commence any court proceedings in relation to the whole or part of the Dispute until it has attempted to settle the Dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

32.3       If for any reason the Dispute is not resolved within 120 working days of commencement of the mediation, the Dispute shall be referred to and finally resolved by the courts of England and Wales in accordance with clause 40.

33. Further assurance

At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these terms and conditions.

34. Variation

No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

35. Waiver

35.1       A waiver of any right or remedy under these terms and conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

35.2       A failure or delay by a party to exercise any right or remedy provided under these terms and conditions 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 these terms and conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.

35.3       A party that waives a right or remedy provided under these terms and conditions or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.

36. Notices

36.1       Any notice given to Puragen under or in connection with these terms and conditions shall be in writing and shall be:

(a)       delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b)       sent by email to the following address: Head of Legal – [email protected].

36.2       Any notice shall be deemed to have been received:

(a)       if delivered by hand, at the time the notice is left at the proper address;

(b)       if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c)       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. 

36.3       This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

37. Entire agreement and superseding of existing agreement

37.1       These terms and conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

37.2       Each party acknowledges that in entering into these terms and conditions 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 these terms and conditions.

37.3       Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.

37.4       Nothing in this clause shall limit or exclude any liability for fraudulent misrepresentation.

38. Third party rights

Unless it expressly states otherwise, these terms and conditions, does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions. 

39. Governing law

These terms and conditions 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.

40. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions or its subject matter or formation.